EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 111

Issued by the authority of the Attorney-General

Crimes (Overseas) Act 1964

Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2009 (No. 1)

 

The Crimes (Overseas) Act 1964 (the Act) extends the application of the criminal laws of the Jervis Bay Territory to certain categories of Australian citizens and permanent residents working overseas. The extension of criminal law of the Jervis Bay Territory is consistent with other Commonwealth legislation that applies criminal law extraterritorially (for example, the Crimes at Sea Act 2000). The criminal law of the Jervis Bay Territory comprises a readily identifiable body of criminal law over which the Commonwealth Government may exercise direct control through its Ordinance making power (see the Jervis Bay Territory Acceptance Act 1915).

 

Section 9 of the Act provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Paragraph 3C(1)(a) of the Act states that the regulations may provide that a foreign country is a declared foreign country for the purposes of the Act. Paragraph 3C(1)(b) of the Act states that the regulations may provide that a country is a declared foreign country for the purposes of the Act but only in relation to a specified category of persons. Subsection 3C(3) provides that the regulations must specify the day on which the foreign country is to start being a declared foreign country, and the day on which the foreign country is to cease being a declared foreign country.

 

The purpose of the Regulations is to re-list Iraq, Solomon Islands and PNG as declared foreign countries, to add Afghanistan to the list of declared foreign countries, and to remove Jordan from the list of declared foreign countries. The amendments would mean that all Australian citizens or permanent residents working for, or on behalf of the Commonwealth in Afghanistan, Iraq, PNG and Solomon Islands are subject to Australian criminal jurisdiction under the Act. All four countries start to be declared foreign countries on 1 July 2009 and cease to be declared foreign countries on 1 July 2014.

 

The Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) prescribe countries for the purposes of section 3C of the Act. Currently, Iraq, Solomon Islands, the Hashemite Kingdom of Jordan (Jordan) and Papua New Guinea (PNG) are listed in the Principal Regulations as ‘declared foreign countries’. However, the Principal Regulations provide that Jordan and PNG ceased to be declared foreign countries on 30 June 2008. The Principal Regulations also provide that Iraq and Solomon Islands will cease to be declared foreign countries on 1 July 2009.

 

Prior to these Regulations, PNG was listed in the Principal Regulations as a ‘declared foreign country’ but only in relation to a specified category of persons, pursuant to paragraph 3C(1)(b) of the Act. The Principal Regulations provided that a ‘designated person’ was a person deployed to PNG as part of the package of enhanced cooperation. The package of enhanced cooperation has changed significantly since PNG was listed as a declared foreign country in 2004, and a number of additional Australians are now working for, or on behalf of, the Commonwealth in PNG outside of this package. The Regulations list PNG as a declared foreign country under paragraph 3C(1)(a). The declaration of PNG is not limited to a specific category of persons.

 

The Regulations also remove Jordan from the list of declared foreign countries. It is no longer necessary to list Jordan as a declared foreign country as there are currently no Australians working for, or on behalf of, the Commonwealth in Jordan.

 

The Regulations also make minor amendments to refer to Solomon Islands by its official country name.

 

Subsection 3C(4) of the Act provides that before the Governor‑General makes the regulations, the Attorney-General, after consulting the Minister for Foreign Affairs, must be satisfied it is appropriate to make the regulations, having regard to:

·        whether the Act would apply to Australians in the foreign country even if the regulations were not made

·        the nature of the activities engaged in by Australians in the foreign country

·        the period during which those activities are to be engaged in

·        the number of Australians likely to be engaging in those activities

·        the circumstances in which Australians engaged in activities in the foreign country are subject to, or immune from, the foreign country’s criminal laws, and

·        any other relevant matter.

 

The Attorney-General was satisfied that it was appropriate to make the Regulations having regard to these factors. The Minister for Foreign Affairs supported the making of the Regulations.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations will commence on 1 July 2009.

 

Consultation was not necessary for this legislative instrument as this instrument does not substantially alter existing arrangements. It has no direct or indirect effect on business.