EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 140
Issued by the Authority of the Minister for Justice and Customs
Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (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 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. This is consistent with the application of 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 regulations 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 the Hashemite Kingdom of Jordan (Jordan) are ‘declared foreign countries’ under the Act. The Principal Regulations specified that the Solomon Islands was declared a foreign country until 1 July 2007.
The Crimes (Overseas) (Declared Foreign Counties) Amendment Regulations 2007 (No. 1) (the Regulations) extend the existing period in the Principal Regulations so that the Solomon Islands continues to be a ‘declared foreign country’ until 1 July 2009.
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 the following:
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- whether the Act would apply to Australians in the foreign country even if the regulation 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 engaged in those activities;
- the circumstance 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 Minister 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.
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 will commence on 30 June 2007 after registration on FRLI.
Consultation was not necessary 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 indirect effect on business.
ATTACHMENT
Details of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the proposed Regulations is the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 1).
Regulation 2 – Commencement
This regulation provides that the proposed Regulations will commence on 30 June 2007.
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 Schedule 1.
Schedule 1 – Amendment
Item [1] – Paragraph 5(2)(b)
Paragraph 5(2)(b) of the Principal Regulations provided that Solomon Islands was declared a foreign country for the purposes of the Crimes (Overseas) Act 1964 from 1 July 2003 until 1 July 2007. This item extends the period for which the Solomon Islands is taken to be a declared foreign country until 1 July 2009.
Overview
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 1) were enacted to extend the application of the Crimes (Overseas) Act 1964 to ensure that Australian criminal law continues to apply extraterritorially in the Solomon Islands. This extension was necessary due to ongoing security concerns and the need to protect Australian nationals engaged in various activities in the region. The Regulations were made under the authority of the Minister for Justice and Customs, in consultation with the Minister for Foreign Affairs, and were deemed appropriate given the nature of Australian activities in the Solomon Islands, the duration of these activities, and the legal immunity of Australians from local criminal laws. These amendments aim to maintain the extraterritorial reach of Australian criminal law, ensuring that Australian citizens and officials are held accountable under Australian law when operating in foreign countries, particularly in areas of instability or where local legal systems may not adequately protect Australian interests.
Scope and Application
The Crimes (Overseas) Act 1964 extends Australia's criminal jurisdiction extraterritorially to apply to Australian citizens who are working in specified foreign countries, which are termed "declared foreign countries." The Act applies to Australians who are performing functions or undertaking tasks on behalf of the Commonwealth while in these declared foreign countries. The application of the Act is contingent on the Minister for Justice and Customs, after consulting with the Minister for Foreign Affairs, being satisfied that it is appropriate to declare a country as such, considering factors like the nature and duration of Australian activities in that country, the number of Australians involved, and the legal circumstances in the foreign jurisdiction. Currently, Iraq, the Solomon Islands, Papua New Guinea, and Jordan are designated as declared foreign countries under the Act. The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 1) extend the period for which the Solomon Islands is considered a declared foreign country until 1 July 2009. The Regulations also allow for further amendments and extensions through subordinate instruments as deemed necessary by the Minister.
Key Provisions
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 1) amend the existing regulations (Crimes (Overseas) (Declared Foreign Countries) Regulations 2003) to alter the duration for which certain countries are considered "declared foreign countries" under the Crimes (Overseas) Act 1964 (section 3C(1)(a)). Specifically, Regulation 3 amends the Principal Regulations to extend the period for which the Solomon Islands is considered a declared foreign country until 1 July 2009 (Schedule 1, Item [1]). These regulations are designed to align with the requirements set out in section 9 of the Crimes (Overseas) Act 1964, which allows the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Act.
Under the amended regulations, the obligations on Australian citizens working in the Solomon Islands are that they will be subject to Australian criminal laws in the same manner as if they were within the territorial jurisdiction of Australia. This means that if an Australian citizen commits a criminal act in the Solomon Islands during the extended period, they could be prosecuted under Australian law. The Act applies if the Australian is working on behalf of the Commonwealth, ensuring that the extraterritorial application is tied to official duties (subsection 3A(5)).
The Act imposes certain obligations on the parties it governs, specifically Australian citizens who are working in declared foreign countries. These individuals must adhere to Australian criminal law standards even when operating overseas, particularly if their activities are linked to the Commonwealth. The obligations are clear in that they must avoid actions that would breach Australian criminal law, which could lead to prosecution.
There are potential offences and penalties for breach of the Act, though specific details on penalties are not provided in the explanatory statement. Generally, under the Crimes (Overseas) Act 1964, individuals found guilty of criminal acts while in a declared foreign country may face penalties similar to those prescribed for the same offences in Australia. The penalties can include fines and imprisonment, with the exact penalties depending on the nature and severity of the offence committed. The Act does not specify maximum penalties within the explanatory statement, but it is understood that these would align with Australian criminal law standards.