Editors --- "Study investigates complexities of maritime crime in Australia's offshore areas" [1998] AUFPPlatypus 7; (1998) 58 Platypus: Journal of the Australian Federal Police, Article 7

• Offences and Policing

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Study investigates complexities of maritime crime in Australia's offshore areas

As Australia's responsibility for policing the waters surrounding it has grown, so has the complexity of today's criminal environment, and as a result the ways of effecting the law enforcement role is also changing.

Early last year, the AFP seconded Federal Agent Doug MacKinnon from Eastern Region to the Centre for Maritime Policy at the University of Wollongong to undertake research into maritime crime.

Federal Agent MacKinnon said his research towards a PhD from the Faculty of Law at the University of Wollongong investigates the division of jurisdiction between state and federal governments over different types of illegal activity connected with the sea.

"The study stems from the extension of Australia's jurisdiction at sea following the declaration of an Exclusive Economic Zone (EEZ) in 1994, and the fact that the level of activity in Australia's offshore areas is steadily increasing," Federal Agent MacKinnon said.

International law and the adequacy of existing federal, state and territory legislation to reflect this jurisdiction will be considered in the study as well as the problems of maritime regulation and enforcement.

It aims to identify and classify maritime crime and assess its characteristics; identify relevant international, Australian and state and territory laws which pertain to maritime crime and where gaps and overlap exist; examine the jurisdictional problem in policing maritime crime, including the division of jurisdiction between state, territory and federal authorities; and assess the practical difficulties of maritime regulation and enforcement given the nature of the maritime domain.

The research will establish whether there is scope for improvement in the relevant state, territory and federal legislation and the enforcement procedures that apply to maritime crime; and, if the prevention of maritime crime in Australia is handicapped by the division of responsibility between state, territory and federal authorities in respect of the various types of maritime crime in different maritime zones of jurisdiction.

Communication between agencies was a major theme of the study and Federal Agent MacKinnon said he had already established close links with several agencies in Australia and overseas including those he met through his recent attendance at the Regional Seas Cooperation and Dialogue Conference at the Ocean University in Qingdao, China, recently. His comparative work for the study will be done with Canada and China and, as part of his research, he has been authorised to accompany a Royal Australian Navy patrol boat in waters off northern Australia.

Federal Agent MacKinnon said that the term ‘maritime crime' is defined as ‘a criminal offence connected to the sea'.

"The offences which satisfy this criteria are often transnational as they impact on more than one jurisdiction. Most if not all the associated criminal activities have a land base of some kind and effective enforcement often relies upon intelligence from shore-based sources as well as the cooperation of law enforcement agencies in other jurisdictions".

AFP members are empowered in a wide range of legislation, yet it was not very common for them to use such powers and environmental crime was becoming more important to the community, Federal Agent MacKinnon said.

Fisheries and trade activities and offshore oil exploration were constantly increasing and the amount of activity that probably would be generated by the Olympic Games in Sydney in 2000 would have a significant impact on the waters around Australia. During the Barcelona Olympics, about 50 cruise liners had visited the city's port.

The following extract is taken from an overview of Federal Agent MacKinnon's study:

"If there is one feature of maritime crime it is its complexity. There is no single source or code pertaining to criminal matters connected with the sea in Australian law. Criminal law as it impacts on the maritime arena consists of rules and principles of diverse sources. These include international, federal, state, and local government legislation together with common law, international treaties and other agreements.

The complexity of maritime crime is demonstrated by the number of statutes and regulations connected with the sea. Many federal and state statutes deal expressly with crime in its various forms. Establishing what jurisdiction is responsible for a particular crime can be difficult because the statutes are administered by numerous departments and agencies whose officers often have regulatory roles outside of that of their specific agency. The function and role of these bodies is governed by the division of powers in the Constitution and the arrangements developed between the different tiers of government.

Australia now has some degree of jurisdiction over an area of ocean roughly twice the size of the continental land mass of Australia. The nature of this jurisdiction varies from full sovereignty to a limited power to enact laws with respect to particular types of marine resource, and the preservation and protection of the marine environment. Australia may also enforce its maritime laws against Australian-flag vessels and Australian citizens anywhere on the "high seas" (i.e. the waters outside the national jurisdiction of any country, including the 200 nautical mile exclusive economic zones of other countries).

While a 12-mile territorial sea was proclaimed in 1990, there have been two further developments with a major impact on Australia's jurisdiction at sea which are still to be implemented comprehensively in legislation and maritime law enforcement procedures:

• the proclamation in August 1994 of a 200 nautical mile Exclusive Economic Zone (EEZ) with consequent obligations on Australia to preserve and protect the marine environment in that area, including the conservation of marine species; and

• the entitlement to a ‘contiguous zone', extending 24 nautical miles from the coast, where Australia may exercise the control necessary to ‘prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea' and punish infringement of relevant laws and regulations.

State and territory jurisdiction extends to waters ("coastal waters") which include those designated as within ‘the limits of a state', internal waters, and that part of the territorial sea which extends out to three nautical miles from the coast. Commonwealth jurisdiction extends beyond three nautical miles to the edge of the EEZ, or to the edge of the continental shelf where it continues beyond the EEZ.

Offences and Policing

At present, maritime crime offences are not subject of a neatly coordinated hierarchy of requirements. Criminal law is perceived as the laws reflecting prohibited conduct such as murder, the traffic in illicit narcotics, robbery and theft, as well as offences against the person or property. The criminal law is also used to regulate conduct of a type viewed as being quasi-criminal, regulatory or public welfare offences. Examples of such offences include acts or deeds harmful to the environment such as pollution of the oceans or fishing in prohibited areas. Most environmental statutes can impose criminal liability. Members of the AFP, and in some instances state police, hold statutory office under most of the related legislation.

The net effect of the fragmentation of the enforcement effort against maritime crime is that no holistic view of the issue is achieved. If valuable information to the Australian law enforcement effort fails to be developed into intelligence, millions of dollars may well be lost in revenue with some criminals offending with impunity. With the declaration of an Exclusive Economic Zone, the expansion of the area over which Australia exerts jurisdiction (together with an increase in its international responsibilities), the problem has been compounded."