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Crimes (Ships and Fixed Platforms) Bill 1992



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House: Senate

Portfolio: Attorney- General

Purpose

To introduce a number of offences in relation to ships and fixed platforms. This will enable Australia to become a party to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf.

Background

The Achille Lauro Incident - Outline: The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, which will be implemented by this Bill, were drafted as a direct result of the Achille Lauro incident. On 7 October 1985, four members of the Palestinian Liberation Front took command of the Achille Lauro, an Italian cruise ship, ten nautical miles from the coast of Egypt. They held the ship's crew and passengers hostage, and threatened to kill the passengers unless Israel released 50 Palestinian prisoners. On October 8 1985, when their demands were

not met, the hijackers shot and killed a person of U.S. nationality. On October 9 1985, the Egyptian Government granted the hijackers safe passage in return for the surrender of the passengers (Note: There is no evidence that the Egyptian Government knew that a passenger had been killed at that time). Subsequently, the U.S. intercepted the Egyptian plane carrying the hijackers and forced it to land at a NATO airbase in Sicily. Italy prosecuted most of the hostage- takers, but allowed the head of the hostage- takers, to depart to Yugoslavia and tried him in absentia. This outcome, which has been widely criticised, was in part due to uncertainties about the legal position of the parties involved (e.g. the Achille Lauro was a ship under an Italian flag, the hijacking took place in Egyptian waters and the murdered victim was a U.S. citizen). In addition, despite there being several conventions dealing with specific aspects of terrorism, such as the Hague Convention on Suppression of Unlawful Seizure of Aircraft and the Convention Against the Taking of Hostages, there was no convention on maritime terrorism (Note: There is also no generally accepted definition of terrorism).

Convention and Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation - Outline: On March 10 1988, the International Maritime Organization adopted the present Convention and Protocol. The Convention comprises 22 articles and a protocol that extends the provisions of the Convention to fixed platforms located on the continental shelf. Offences under the Convention: Article 3 sets out the acts that constitute offences under the Convention. Offences include hijacking a ship; violence against a person on board a ship if that act is likely to endanger the safe navigation of the ship; sabotage of a ship or maritime navigational facility; and injuring or killing any person in connection with other offences. Scope of Convention: The general scope of the Convention is contained in Article 4. The Convention applies to ships navigating or scheduled to navigate beyond the territorial waters of a party to the Convention, or the lateral limits of its territorial sea with adjacent parties to the Convention. Penalties: Article 5 requires parties to the Convention to establish appropriate penalties for Article 3 offences. Jurisdiction: Article 6(1) requires parties to the Convention to assert jurisdiction where an Article 3 offence is committed against or on board a ship flying their flag; in their territory; or by one of their nationals. Article 6(2) allows a party to the Convention to assert jurisdiction where an Article 3 offence has been committed by a stateless person whose habitual residence is in their territory; where a national of a party to the Convention is seized, threatened, injured or killed; or where the offence is committed in an attempt to compel them to do or not do any act.

Custody and Rights of Person in Custody: Article 7(1) requires parties to the Convention, in whose territory an offender or alleged offender is found, to take him/her into custody or take other measures to ensure his/her presence for criminal or extradition proceedings. Offenders and alleged offenders taken into custody will be entitled to communicate with and be visited by a representative of his/her country, or if they are stateless, the country of which he/she has his/her habitual residence (Article 7(3)). Prosecution Without Delay and Rights of Person being Prosecuted: Article 10(1) requires parties to the Convention in whose territory an offender or alleged offender is found, if it does not extradite him/her, is to submit the case to the relevant authorities without delay for prosecution. An offender or alleged offender in respect of whom proceedings are being carried out, is to be guaranteed fair treatment at all stages of the proceedings (Article 10(2)). Extradition: Article 11 deals with extradition. Article 11(1) provides Article 3 offences will be deemed to be included in extradition treaties. Where there is no extradition treaty between two parties to the Convention, the party requesting extradition may consider the Convention as a legal basis for extradition, subject to any conditions imposed by its national law (Article 11(2)). Article 11(4) provides that if necessary for the purposes of extradition, Article 3 offences are to be treated as if they occurred within the jurisdiction of the party requesting extradition.

Co- operation Between Parties to the Convention in Criminal Proceedings: Article 12 requires parties to the Convention, in connection with criminal proceedings arising under Article 3 offences, to afford one another the greatest measure of assistance. Arbitration: Article 16 provides that in any dispute between parties to the Convention in relation to the interpretation or application of the Convention may be submitted to arbitration at the request of one of the parties. If, within six months from the date of a request for arbitration the parties are not able to agree on the organization of the arbitration, one party may refer the dispute to the International Court of Justice.

Main Provisions

Definitions: 'Fixed platform' is defined by clause 3 to mean an artificial island, installation or structure permanently fixed to the sea- bed for exploration or exploitation of resources, or other purposes.

'Private ship' is defined by clause 3 to mean a ship that is not a warship or other ship operated for naval, military, customs or law enforcement purposes by Australia or a foreign country.

'Ship' is defined by clause 3 to mean a vessel of any type not permanently attached to the sea- bed, including any hovercraft, submarine or any other floating craft other than one withdrawn from navigation or laid up.

Extraterritorial Application: This Bill will apply, unless a contrary intention is stated in it, to acts, matters and things outside Australia and to all persons, whatever their nationality or citizenship (clause 5).

Effect of Bill on Commonwealth, State and Territory Laws: Clause 6 provides that this Bill will not exclude or limit the operation of Commonwealth, State or Territory laws, other than sections 5 and 7 of the Crimes Act 1914 (Cth) (Note: sections 5 and 7 relate to aiding, abetting and attempting) which will not apply in relation to clauses 17 and 28 of this Bill (Note: clauses 17 and 28 relate to acts of blackmail).

Offences - Ships and Platforms: Clauses 8- 17 and 21- 28 contain offences Australia is required to introduce in order to give effect to the Convention. The more interesting offences include:

* without lawful excuse, taking possession of, or taking or exercising control over, a private ship or fixed platform by threat or use of force, or any other kind of intimidation (clauses 8 and 21);

* without lawful excuse, destroying a private ship, or causing damage to a private ship or its cargo knowing it is likely to endanger the safe navigation of the ship (clause 10);

* placing destructive devices on a ship or platform (clauses 11 and 24); and

* without lawful excuse, destroying a fixed platform or causing damage to a fixed platform knowing that it is likely to endanger its safety (clause 23).

The maximum penalty for a breach of any of the above provisions will be life imprisonment.

Limitation on Commencement of Proceedings: Proceedings are only to be commenced for an offence against clauses 8- 17 of this Bill if, when the alleged offence was committed, the ship concerned was:

* on, or scheduled to engage in, an international voyage, or in the territorial sea or internal waters of a foreign country; and

* the ship was Australian, the alleged offender Australian, or the alleged offence had a Convention State element (e.g. the ship concerned was flying the flag of a party to the Convention, or the alleged offender was a national of a party to the Convention) (clause 18).

Clause 29 provides for similar limitations to apply in relation to fixed platforms.

Powers of Ship's Master: A ship's master may arrest and hold in custody any person they reasonably believe has committed an offence against clauses 8-16 of this Bill. An alleged offender may only be held in custody until they can be delivered to the appropriate authorities of a party to the Convention, or another appropriate authority.

A ship's master (i.e. the master of an Australian ship) may deliver to the appropriate authorities of any party to the Convention, any person they reasonably believe has committed an offence against clauses 8- 16 of this Bill (clause 20). Where a ship's master has an intention to deliver a person, it will be an offence, punishable by a maximum fine of $2000, for them not to notify the appropriate authorities of a party to the Convention of his/her intention to deliver the person to the authorities, and of his/her reasons for intending to do so.

Consent of Attorney- General for Prosecution: Prosecution for an offence against clauses 8- 17 and 21- 28 of this Bill, or arising under sections 5 or 7 of the Crimes Act 1914 in relation to an offence against clauses 8- 16 and 21- 27 of this Bill, may not be commenced without the Attorney- General's consent, or consent of a person authorised by the Attorney- General to give consent (clause 30).

Recommended Reading

Antonio Cassese, Terrorism, Politics and Law, 1989, Cambridge, Polity Press.

Malvina Halberstam, 'Terrorism On The High Seas: The Achille Lauro, Piracy And The IMO Convention On Maritime Safety', in The American Journal of International Law, Vol. 82, No. 2, 1988, p. 269.

Philip E. Fried, 'Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation', in Harvard International Law Journal, Vol. 30, No. 1, 1989, p. 226.

Bills Digest Service 27 July 1992

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1992.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1992.