Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2004 (No. 1) 2004 No. 61
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 61
Minute No. of 2004 - Minister for Justice and Customs
Subject - Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2004 (No. 1)
Section 9 of the Crimes (Overseas) Act 1964 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act extends the criminal law of the Jervis Bay Territory extraterritorially over various groups of Australians working in foreign countries. One of these groups is Australians working in a foreign country where that foreign country has been declared by regulation to be 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 foreign country is a declared foreign country for the purposes of the Act 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 for the purposes of the Act.
The Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 prescribe countries for the purposes of section 3C of the Act. Currently, Iraq and the Solomon Islands are declared foreign countries under the Act.
At the 15th Australia-Papua New Guinea Ministerial Forum, held on 11 December 2003, the Governments of Australia and Papua New Guinea agreed to a package of enhanced cooperation for the provision of police and other assistance by Australia to Papua New Guinea.
The purpose of the Regulations is to declare Papua New Guinea to be a declared foreign country for the purposes of the Act from the date of gazettal and ceasing at the end of 30 June 2008.
The Regulations apply the Act to a person in relation to an act or omission if the person is an Australian undertaking a task or project or performing a function on behalf of the Commonwealth, or pursuant to commitments or directions given by or on terms determined by the Commonwealth in Papua New Guinea where that person is a designated person. 'Designated person' is defined as a person who is deployed to Papua New Guinea as part of the package of enhanced cooperation and whose name is notified by the Australian Department of Foreign Affairs and Trade to the Papua New Guinea Department of Foreign Affairs and Immigration.
The Regulations specify that the declaration of Papua New Guinea would take effect on the date of gazettal. The declaration ceases on 30 June 2008, which is the likely end date of the planned civilian deployment in Papua New Guinea.
Subsection 3C(4) of the Act provides that before regulations are made for the purposes of subsection 3C(1), the Minister, after consulting the Minister for Foreign Affairs, must be
satisfied that it is appropriate to do so having regard to whether this 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 number of Australians likely to be engaging in those activities, the circumstances in which Australians engaging in activities in the foreign country are subject to or immune from the foreign country's criminal laws, and any other relevant matter.
The Minister was satisfied that it was appropriate to make the Regulations having regard to these factors. The Minister consulted the Minister for Foreign Affairs, who supported the making of the Regulations.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 to the Regulations amends the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003.
Schedule 1 declares Papua New Guinea to be a declared foreign country for the purposes of the Act, in relation to designated persons from the date of gazettal- 30 June 2008.
Authority: Section 9 of the Crimes (Overseas) Act 1964
Overview
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2004 (No. 1) were enacted to address a specific gap in the application of Australian criminal law to Australians working in certain foreign countries. This legislation was introduced by the Minister for Justice and Customs, in line with the authority granted under section 9 of the Crimes (Overseas) Act 1964. The Act was amended to extend the criminal jurisdiction of Australia over Australians working in countries that have been declared as "declared foreign countries". The Regulations specifically declare Papua New Guinea as a declared foreign country for the purposes of the Act, in relation to designated persons, from the date of gazettal until the end of 30 June 2008. This legislative change was in response to an agreement between Australia and Papua New Guinea for enhanced cooperation in the provision of police and other assistance, with the Regulations applying to designated persons deployed as part of this agreement. The Minister was satisfied that the declaration was appropriate, having consulted with the Minister for Foreign Affairs who supported the making of the Regulations.
Scope and Application
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2004 (No. 1) amends the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 to declare Papua New Guinea as a declared foreign country for the purposes of the Crimes (Overseas) Act 1964, effective from the date of gazettal until 30 June 2008. This amendment applies to Australian persons who are designated individuals and who are deployed to Papua New Guinea as part of a package of enhanced cooperation agreed between Australia and Papua New Guinea. These designated persons must be on behalf of the Commonwealth, or pursuant to commitments or directions given by or on terms determined by the Commonwealth. The application of the Act to these designated persons ensures that Australian criminal law extends to their activities in Papua New Guinea, regardless of local laws, for the specified period. The cessation of this declaration on 30 June 2008 aligns with the likely end date of the planned civilian deployment in Papua New Guinea.
Key Provisions
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2004 (No. 1) (section 2) commence on the date of their gazettal, which is when they officially come into effect and start applying to the relevant persons and situations. The primary function of these regulations, as stated in regulation 3 and Schedule 1, is to declare Papua New Guinea as a declared foreign country for the purposes of the Crimes (Overseas) Act 1964 (the Act) in relation to designated persons from the date of gazettal until 30 June 2008. This means that Australians who are deployed to Papua New Guinea under the package of enhanced cooperation, and whose names have been notified by the Australian Department of Foreign Affairs and Trade to the Papua New Guinea Department of Foreign Affairs and Immigration, will be subject to Australian criminal law when they are in Papua New Guinea for work-related activities.
These regulations impose obligations on designated persons working in Papua New Guinea, as well as on the Commonwealth and its agencies. The designated persons must ensure that they are aware of and comply with Australian criminal law while they are in Papua New Guinea, even if they are subject to the criminal laws of Papua New Guinea. The Commonwealth and its agencies, including the Department of Foreign Affairs and Trade, must notify the relevant designated persons of the application of Australian criminal law and ensure that the persons are aware of their obligations under the Act. The regulations also require that the declaration of Papua New Guinea as a declared foreign country will cease on 30 June 2008, which is the likely end date of the planned civilian deployment in Papua New Guinea.
Under the Crimes (Overseas) Act 1964, any person who contravenes the provisions of the Act or the regulations made under the Act may be subject to criminal or civil penalties. In the case of these regulations, a designated person who fails to comply with Australian criminal law while in Papua New Guinea may be subject to criminal prosecution in Australia or in Papua New Guinea. The maximum penalties for offences under the Act depend on the nature and severity of the offence, but can include fines and imprisonment. Additionally, the Commonwealth or its agencies that fail to comply with their obligations under the regulations may be subject to administrative penalties, such as fines or other sanctions. It is important to note that the specific penalties for breach of the Act or regulations will depend on the circumstances of each case and will be determined by the relevant courts or authorities.