EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 121
Issued by the Authority of the Minister for Justice and Customs
Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2005 (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. The extension of the criminal law of the Jervis Bay Territory is consistent with other legislation that applies criminal laws extraterritorially (for example the Crimes at Sea Act 2000).
Under subsection 3A(5) of the Act, one of the situations in which the Act applies to a person who does an act in a foreign country is if:
- the person is an Australian;
- the person is undertaking a task or project or performing a function on behalf of the Commonwealth; and
- that foreign country has been declared by regulation to be a declared foreign country for the purposes of 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. 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 (the Principal Regulations) prescribe countries for the purposes of section 3C of the Act. Currently, Iraq, the Solomon Islands, Papua New Guinea and Jordan are ‘declared foreign countries’ under the Act. The Principal Regulations state that Iraq and the Solomon Islands will cease to be ‘declared foreign countries’ on 1 July 2005.
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2005 (the Regulations) roll-over the existing two year period in the Principal Regulations so that Iraq and the Solomon Islands continue to be ‘declared foreign countries’ for a further two years.
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 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 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 is satisfied that it is appropriate to make the Regulations having regard to these factors. The Minister has consulted with the Minister for Foreign Affairs, who supports the making of the Regulations.
Details of the Regulations are set out in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 July 2005.
Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct, or substantial indirect effect on business.
ATTACHMENT
Details of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2005 (No. 1) (the Regulations)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Crimes (Overseas) (Declared Foreign Countries) Regulations 2005 (No. 1).
Regulation 2 – Commencement
This regulation provides that the Regulations commence on 1 July 2005.
Regulation 3 – Amendment of Crimes (Overseas) (Declared Foreign Countries) Regulations 2003
This regulation provides that the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) are amended as set out in the Schedule.
Schedule – Amendments
Item 1 – subregulation 4(2)
Subregulation 4(2) of the Principal Regulations provides that Iraq is taken to have been a declared foreign country for the purposes of the Act from 1 July 2003 until 1 July 2005. This item extends the period for which Iraq is taken to be a declared foreign country until 1 July 2007. This rolls over the existing two year period for a further two years.
Item 2 – subregulation 5(2)
Subregulation 5(2) of the Principal Regulations provides that the Solomon Islands is taken to have been a declared foreign country for the purposes of the Act from 1 July 2003 until 1 July 2005. This item extends the period for which the Solomon Islands is taken to be a declared foreign country until 1 July 2007. This rolls over the existing two year period for a further two years.