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Monday, 6 December 1999
Page: 12872


Mr BAIRD (8:38 PM) —I rise tonight in support of the Crimes at Sea Bill 1999 . It is important that we recognise the work of the minister in bringing forward this legislation. It is obviously a reflection of events of recent weeks and of the whole illegal immigrant trade, which has been going on for many years. This bill is a way of overhauling the way the government polices its coastlines and surrounding territorial waters. Further to the border protection legislation, which was introduced on 21 October, this bill will increase the effectiveness of law enforcement around our coastline. The bill has the full support of the Attorney-General's committee, of which I am the secretary, so I am pleased to support it.

There is undoubtedly current uncertainty as to which legislation applies and which jurisdiction applies to illegal activity on our waterways adjacent to the coast. The question goes to which justice system has jurisdiction over investigating and trialling offences. Such technicalities can mean that justice may not be served on an offender. Of course, this is the very opposite of what we would want to achieve in terms of the law enforcement agencies in this country.

Under current laws relating to criminal offences at sea, the law must consider the registration of the vessel involved—whether it is an Australian or an overseas registered vessel, from what Australian state it originates and is registered in, and whether the offence occurred during a trip between states or between areas of the same state. Of course, that is clearly a nonsense. One might raise the question of why it has taken until 1999 to remove some of the absurdities that relate to this legislation and this bill.

Different law enforcement laws and procedures apply to different state police agencies and, while officers would be well versed on the requirements of their own state, they may not be so well versed in the complexities that relate to other states and other jurisdictions. The states and territories have agreed to introduce uniform crimes at sea acts which will govern activities within an offshore area up to 12 nautical miles. Beyond 12 nautical miles and up to the 200-mile limit would be the responsibility of Commonwealth law.

The investigating authority will need only to have regard to the state in which they are operating and the laws of the state in which the vessel is apprehended. In fact, it does not need to consider the state in which the vessel was registered, and that will certainly make it much simpler. Where an investigation of a state and a Commonwealth crime is being conducted, the investigation will follow whichever system has the more stringent procedures.

This legislation will require that, under the new system, the Commonwealth, state and Northern Territory bills all provide that the Commonwealth Attorney-General's written consent be obtained before a prosecution can proceed in cases in which the alleged offence also falls within a foreign country's jurisdiction. This requirement is necessary to promote compliance with Australia's international obligations. Before the Commonwealth Attorney-General takes any action, he must seek the views of the foreign state or country concerned. The absence of consent, however, will not prevent preliminary steps such as an arrest, charges being laid or extradition proceedings from beginning.

Of course, that is an important aspect because some offences have been committed which have been prevented from further follow-up because of the failure of the jurisdiction concerned or the foreign country concerned to give consent for the action to be taken or for some other reason, such as that in the Balkan peninsular conflict where states no longer existed. This would certainly clarify the situation and provide clear jurisdiction for the Attorney-General, having got the agreement of the state concerned or a request having been made that he can sign, having made an attempt to get the agreement of the state involved.

I would like to give two factual scenarios illustrating how the proposed uniform crimes at sea law improves the existing crimes at sea legislation. Imagine that a cruise ship is off the coast of Queensland and is travelling from Cairns to Sydney and a rape occurs on board that ship. Queensland police are alerted to the rape and make arrangements to come on board and investigate the offence. Naturally, these police will want to question the suspected offender as soon as possible and may want to search for incriminating evidence.

The Queensland officers, wanting to move quickly, turn to the Commonwealth Crimes at Sea Act 1979 to decide what powers they can exercise. They discover that the answer to this question depends upon the state to which the ship is connected. Even though the ship is travelling from Cairns to Sydney, its home base may be Melbourne. Queensland police operating off the Queensland coast would then have to exercise Victorian powers, and that clearly is a nonsense.

This is not the only problem that may be faced. If the ship is a foreign vessel which has travelled from a foreign country, the applicable investigatory laws may be those of the ship's next port of call. So the police, who are trying to get on with their investigation, would have to ascertain the ship's next port of call. If the captain is continuing direct to Sydney, the Queensland police will then have to exercise New South Wales powers. If the captain decides to berth in Brisbane, then of course the Queensland powers will be invoked. Obviously, the Queensland police will not really know where they stand on this issue.

Yet this is not the end of the potential problem. If the Queensland police turn to the Queensland crimes at sea legislation, they will discover that it is not uniform with the Commonwealth act. The Queensland law lays down some rules that do not align with the Commonwealth provisions, leaving the officers to resolve a complex constitutional question about conflict of laws. Furthermore, for reasons that have been outlined, the police may not know whether the relevant charges will arise under Queensland, New South Wales, Victorian or some other law. This complex set of preliminary questions creates the real prospect of delay and doubt. It also sets up plenty of grounds for the offender to challenge the lawfulness of any efforts at evidence gathering. This is not fair to enforcement officers, victims or the community.

Under the new scheme, the situation would be much clearer. Queensland police would investigate Queensland offences under Queensland investigatory powers, because the ship is in the Queensland `adjacent area', out to 200 nautical miles. Neither the ship's home port nor its destination would be relevant. There would also be a rebuttable presumption that the offence occurred in the adjacent area of the state in which it is believed to have occurred. State law enforcement officers will be able to investigate suspected offences in the adjacent area for their state, under their own state laws and without worrying about any conflict between Commonwealth and state legislation. This is a commonsense outcome.

Scenario 2 is where we require the Attorney-General's consent. Under the current Crimes at Sea Act, the Attorney-General can only consent to a prosecution relating to an alleged offence by a foreign national on a foreign ship once the prosecution consent of the country of the foreign national has been obtained.


Mr Pyne —Absurd!


Mr BAIRD —That is absolutely right. The new scheme streamlines the requirement, requiring the Attorney-General to take into account any views of a foreign country in respect of the prosecution but without requiring the explicit consent of the foreign country. The existing foreign consent requirement has caused considerable difficulties and has the potential to prevent the prosecution of a person who commits a serious offence.

One example of the problems that prompted the removal of the foreign consent requirement occurred in the early 1990s. A serious offence was believed to have been committed by a national of Yugoslavia while he was travelling on a ship in Australian waters. The investigation of this person revealed sufficient evidence to warrant prosecution for a serious criminal offence. However, consent was required from Yugoslavia before the prosecution could proceed. During the early 1990s, Yugoslavia was experiencing a bloody civil war, with such regions as Croatia and Bosnia attempting to break away from the Yugoslav state. At the time of the Yugoslav national's arrest, Yugoslavia did not exist in the sense that it had previously and it certainly lacked any executive government which could give high priority to considering the prosecution of one of its citizens in Australia.

There is also potential under the existing law for a rogue terrorist state to deliberately fail to respond to a request from Australia for consent. If a crime remains unpunished because of Australia's failure to gain the consent of a country facing internal turmoil or ostracised from the international community, there may be little chance that punishment will follow as a result of the laws of that other country. The new crimes at sea scheme will allow the Attorney-General to grant his or her consent to a prosecution where Australia has jurisdiction, after taking into account the views of another country which also has jurisdiction over an accused foreign national. If the foreign country is willing and able to express a view, this will be considered. If the foreign country fails to express a view, the alleged offender will not gain effective immunity from prosecution.

The final aspect relates to the Timor Gap. The bill contains measures relating to Australia's obligations under the Timor Gap Treaty, to which the Indonesian government has just indicated it is no longer a party. When this bill was drafted, the Timor Gap Treaty between Australia and Indonesia had not suffered the strain that currently exists as a result of events in East Timor.

The bill contains special provisions which apply to the Northern Territory's criminal laws governing criminal acts associated with oil exploration and exploitation of oil in the zone of cooperation. On the other hand, the investigation and prosecution rules for offences applied by this bill in area A of the zone of cooperation will be the same as the rules applying in the cooperative scheme area. Put simply, this means that if Northern Territory authorities are investigating or prosecuting an offence, Northern Territory procedural laws will apply. If Commonwealth authorities are investigating or prosecuting, then Commonwealth procedural laws will apply.

So the new scheme is easier to understand and easier to apply, making the work of law enforcement officers that much more efficient. This scheme will give Australian authorities the legislative basis they will need to enforce the criminal law off Australia's coastline. In terms of this piece of legislation, we are removing the anomalies that exist because of the requirement that you need to look at the state in which the vessel is registered or at its next port of call; and we are removing the complexities in terms of getting approval from a foreign national government where that government may no longer exist or may be a rogue government which may not wish to comply.

This is a sensible piece of legislation which should undoubtedly have been enacted some time ago, but I am very glad to see that, given the events that have occurred in recent weeks and also over some period of time in relation to illegal immigrants, this will simplify the action being taken by our law officers around the coast of Australia and will do much to assist in the prosecution of those individuals who are simply flouting Australian requirements and breaching Australian laws. It is my pleasure to commend the bill to the House.