EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 150
Issued by the Authority of the Minister for Justice and Customs
Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 2)
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 Iraq was declared a foreign country until 1 July 2007.
The Crimes (Overseas) (Declared Foreign Counties) Amendment Regulations 2007 (No. 2) (the Regulations) extend the existing period in the Principal Regulations so that Iraq 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. 2)
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. 2).
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 4(2)(b)
Paragraph 4(2)(b) of the Principal Regulations provided that Iraq 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 Iraq is taken to be a declared foreign country until 1 July 2009.
Overview
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 2) was enacted to extend the extraterritorial application of the Crimes (Overseas) Act 1964 to certain foreign countries where Australian citizens might be engaged in activities on behalf of the Commonwealth. This Act was introduced to ensure that Australian nationals working in foreign environments are subject to Australian criminal law when necessary. The regulations were issued under the authority of the Minister for Justice and Customs, who, in consultation with the Minister for Foreign Affairs, determined it was appropriate to extend the period for which Iraq would be considered a declared foreign country until 1 July 2009. This decision was based on the nature of activities Australians were likely to engage in, the period of engagement, and the jurisdictional considerations regarding the application of foreign criminal laws.
The policy objective behind these amendments is to provide a clear legal framework for Australians working abroad, ensuring they are subject to Australian law in specific circumstances. The regulations do not substantially alter existing arrangements and were considered minor, hence did not require consultation beyond the necessary ministerial consultations. The Regulations aim to maintain the integrity of Australian criminal law application in international contexts, ensuring that Australians are held accountable under their home country's laws even when operating overseas.
Scope and Application
The Crimes (Overseas) Act 1964 applies extraterritorially to Australians who are undertaking tasks or projects or performing functions on behalf of the Commonwealth in declared foreign countries. This Act extends the criminal law of the Jervis Bay Territory to such individuals in foreign jurisdictions. To be considered a declared foreign country, the relevant foreign nation must be specified by regulations made under the Act. Currently, Iraq, the Solomon Islands, Papua New Guinea, and the Hashemite Kingdom of Jordan are recognised as declared foreign countries, with Iraq's designation extended until 1 July 2009 by the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 2). The regulations were made after the Minister for Justice and Customs consulted the Minister for Foreign Affairs and was satisfied that it was appropriate to declare Iraq a foreign country under the Act, considering factors such as the nature of activities undertaken by Australians, the duration of these activities, and the legal circumstances of Australians in the foreign country. These regulations are a legislative instrument under the Legislative Instruments Act 2003, with no direct or indirect effect on business.
Key Provisions
The main sections of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2007 (No. 2) (the Regulations) pertain to the extension of the declared foreign country period for Iraq, currently listed under the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations). Specifically, Regulation 3 amends the Principal Regulations, extending the period for which Iraq is considered a declared foreign country under the Crimes (Overseas) Act 1964 (the Act) from 1 July 2007 to 1 July 2009. This amendment is detailed in Schedule 1, Item [1], which modifies Paragraph 4(2)(b) of the Principal Regulations.
The Act imposes certain obligations on Australian individuals who are working in a declared foreign country on behalf of the Commonwealth. Under Section 3A(5) of the Act, Australian nationals performing tasks or projects for the Commonwealth in a declared foreign country are subject to Australian criminal law. This means that Australians must adhere to Australian criminal standards, regardless of the local laws of the country in which they are operating.
The Regulations themselves do not directly impose penalties or criminal consequences. However, the Act provides that any Australian who contravenes the Act while in a declared foreign country can face criminal charges. The maximum penalties for breaching the Act are not specified in the Regulations but would depend on the nature of the offence under the Act itself. The Act’s extraterritorial application ensures that Australians are held to the same standards abroad as they are domestically, reinforcing the integrity and authority of Australian law.
Given the extended period for which Iraq remains a declared foreign country, Australians working in Iraq must remain vigilant about adhering to Australian criminal laws. The extension reflects ongoing concerns about the security and legal environment in Iraq, necessitating continued vigilance and compliance from Australian personnel. Failure to comply with the Act could result in severe legal consequences, highlighting the importance of understanding and adhering to the regulations set forth by the Crimes (Overseas) Act 1964.