Crimes at Sea Act 1998

This Act may be cited as the Crimes at Sea Act 1998.

In this Act—

cooperative scheme means the legislative and administrative scheme for applying and enforcing criminal law in the areas adjacent to the coast of Australia set out in the Schedule;

intergovernmental agreement means the agreement entered into under clause 5 of the Schedule.

To the extent that it lies within the legislative competence of the State to give the cooperative scheme the force of law, it has the force of law.

Offences (other than offences arising under the law of the State) are classified for the purposes of the cooperative scheme as follows:

if the maximum penalty for the offence is a fine or imprisonment for not more than 2 years, the offence is classified as a summary offence; and

if the maximum penalty for the offence is (or includes) imprisonment for more than 2 years but not more than 5 years, the offence is classified as a minor indictable offence; and

if the maximum penalty for the offence is (or includes) imprisonment for more than 5 years or for an indeterminate term, the offence is classified as a major indictable offence.

The Minister must have the intergovernmental agreement, and any amendment to the intergovernmental agreement, published in the Gazette.

This Act and the cooperative scheme do not apply to an act or omission to which section 15 of the Crimes (Aviation) Act 1991 (Commonwealth) applies.

The Governor may make regulations for carrying out, or giving effect to, this Act.

However, this section does not authorise the making of regulations for the purposes of the cooperative scheme.

For the purposes of determining whether this Act applies or the repealed Crimes (Offences at Sea) Act 1980 applies in relation to an act or omission that is alleged to have occurred at some unspecified time between two dates, one date being before and the other after the repeal of that Act, the alleged act or omission will be taken to have occurred before the repeal of that Act.

Schedule—The cooperative scheme

In this scheme—

adjacent area for a State has the meaning given by clause 14 of this Schedule;

Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Commonwealth);

Australian ship means—

a ship registered in Australia; or

a ship that operates, or is controlled, from a base in Australia and is not registered under the law of another country; or

a ship that belongs to an arm of the Defence Force;

baseline for a State has the meaning given by clause 15 of this Schedule;

foreign ship means a ship other than an Australian ship;

inner adjacent area for a State means the parts of the adjacent area for the State that are—

on the landward side of the baseline for the State; and

on the seaward side, but within 12 nautical miles from, the baseline for the State;

intergovernmental agreement means the agreement entered into under clause 5 of this Schedule;

law of criminal investigation, procedure and evidence means law (including unwritten law) about—

the investigation of offences (including coronial inquiry); or

immunity from prosecution and undertakings about the use of evidence; or

the arrest and custody of offenders or suspected offenders; or

bail; or

the laying of charges; or

the capacity to plead to a charge, or to stand trial on a charge; or

the classification of offences as indictable or summary offences (and sub-classification within those classes); or

procedures for dealing with a charge of a summary offence; or

procedures for dealing with a charge of an indictable offence (including preliminary examination of the charge); or

procedures for sentencing offenders and the punishment of offenders; or

the hearing and determination of appeals in criminal proceedings; or

the rules of evidence; or

other subjects declared by regulation to be within the ambit of the law of criminal investigation, procedure and evidence; or

the interpretation of laws of the kinds mentioned above;

maritime offence means an offence against a law that applies in the adjacent area for a State under this scheme;

offence means an indictable or summary offence;

outer adjacent area for a State, means the part of the adjacent area for the State that is outside the inner adjacent area for the State;

participating State Minister means a Minister responsible for administering a State Act that gives effect to this scheme;

ship means a vessel or boat of any description and includes—

a floating structure; and

a hovercraft or other similar craft;

State includes the Northern Territory;

substantive criminal law means law (including unwritten law)—

creating offences or imposing criminal liability for offences; or

dealing with capacity to incur criminal liability; or

providing a defence or for reduction of the degree of criminal liability; or

providing for the confiscation of property used in, or derived from, the commission of an offence; or

providing for the payment of compensation for injury, loss or damage resulting from the commission of an offence, or the restitution of property obtained through the commission of an offence; or

dealing with other subjects declared by regulation to be within the ambit of the substantive criminal law of a State; or

providing for the interpretation of laws of the kinds mentioned above;

summary offence means any offence other than an indictable offence.

The law of criminal investigation, procedure and evidence of the Commonwealth includes provisions of State law on the relevant subjects applied under the Judiciary Act 1903 (Commonwealth).

The substantive criminal law of a State, as in force from time to time, applies, by force of the law of the State, throughout the inner adjacent area for the State.

The provisions of the substantive criminal law of a State, as in force from time to time, apply, by force of the law of the Commonwealth, throughout the outer adjacent area for the State.

However, this clause does not—

apply to a substantive criminal law that is incapable of applying in an adjacent area or is limited by its express terms to a place within the area of a State; or

Example—

A law making it an offence to drive a motor vehicle at a speed exceeding a prescribed limit on a road could not apply in an adjacent area because of the inherent localising elements of the offence. The scheme does not therefore purport to extend the application of such a law to the adjacent area.

give a legal effect to a provision of a substantive criminal law that the provision does not have within the area of the State.

Example—

If the effect of a provision of the substantive criminal law of a State is limited under section 109 of the Constitution within the area of the State, the effect is similarly limited in the outer adjacent area for the State even though the provision applies in the outer adjacent area under the legislative authority of the Commonwealth.

In this clause—

act includes an omission;

area of administrative responsibility for a particular State is—

the area of the State; and

the inner adjacent area for the State; and

other parts of the adjacent area in which the State has, under the intergovernmental agreement, responsibility (which may be either exclusive or concurrent) for administering criminal justice;

authority includes an agent or official;

Commonwealth judicial proceeding means—

a judicial proceeding related to a maritime offence—

initiated by an authority of the Commonwealth; or

for the conduct of which an authority of the Commonwealth has assumed responsibility; or

a judicial proceeding about an investigation, procedure or act by an authority of the Commonwealth in relation to a maritime offence;

judicial proceeding means—

a proceeding in a court (whether between parties or not) or a proceeding incidental to or connected with a proceeding in a court; or

the laying of a charge; or

the preliminary examination of a charge of an indictable offence or a proceeding incidental to or connected with the preliminary examination of a charge of an indictable offence;

preliminary examination of a charge of an indictable offence means a proceeding to decide whether the defendant should be committed for trial or, if the defendant pleads guilty to the charge, to commit the defendant for sentence;

State judicial proceeding means—

a judicial proceeding related to a maritime offence—

initiated by an authority of a State; or

for the conduct of which an authority of a State has assumed responsibility; or

a judicial proceeding about an investigation, procedure or act by an authority of a State in relation to a maritime offence.

The laws of criminal investigation, procedure and evidence of the Commonwealth and the States apply to maritime offences as follows:

the law of the Commonwealth applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the Commonwealth; and

the law of a State applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the State operating within the area of administrative responsibility for the relevant State; and

in a Commonwealth judicial proceeding the law of the Commonwealth applies and in a State judicial proceeding the law of the State in which the proceeding was commenced applies (subject to the Constitution) irrespective of whether—

the maritime offence arises under the law of the State in which the proceeding was commenced or another State; or

the substantive criminal law against which the offence was committed applies in the relevant part of the adjacent area under the law of the State in which the proceeding was commenced, another State or the Commonwealth.

Examples—

1 Suppose that a person is charged by a State authority with a maritime offence on the assumption that the offence was committed in the inner adjacent area for the State but the court is satisfied in the course of the proceedings that the acts alleged against the defendant took place in the outer adjacent area for the State. In this case, the court could continue with the proceedings under the procedural laws of the State. However, the court could not (for example) convict the defendant on the basis of a majority verdict of a jury (because to do so would be contrary to the constitutional principle stated in Cheatle v. The Queen1).

2 Suppose that a person is charged by a State authority in a South Australian court with a maritime offence alleged to have been committed in the adjacent area for Western Australia. For the purposes of the proceedings, the offence would be classified as a major indictable, minor indictable or summary offence according to the South Australian rules and not by reference to its classification under the law of Western Australia or the Commonwealth.

This clause operates to the exclusion of any Commonwealth or State law that is inconsistent with it.

A Commonwealth or State law enacted or made after the commencement of this clause is to be construed as having effect subject to this clause, unless the law expressly overrides this clause.

The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) does not apply to a decision taken under a State law that applies to investigations, procedures and acts by authorities of the State under subclause (2)(b).

Note—

1 (1993) 177 CLR 541.

If, in proceedings for a maritime offence, an alleged act, omission or state of affairs, that is an element of the offence, is proved, an allegation in the information or complaint that the act, omission or state of affairs happened in the adjacent area, inner adjacent area, or outer adjacent area for a particular State is taken to be proved in the absence of proof to the contrary.