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.
Overview
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2009 (No. 1) were introduced to amend the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003, which are subsidiary legislation under the Crimes (Overseas) Act 1964. This Act was enacted to extend the application of the criminal laws of the Jervis Bay Territory to certain categories of Australian citizens and permanent residents working overseas. The Regulations aim to update the list of declared foreign countries for the purposes of the Act, reflecting changes in geopolitical situations and the deployment of Australian personnel. Specifically, the Regulations re-list Iraq, Solomon Islands and Papua New Guinea (PNG) as declared foreign countries, add Afghanistan to this list, and remove Jordan. These changes ensure that Australian citizens or permanent residents working for, or on behalf of, the Commonwealth in these countries are subject to Australian criminal jurisdiction under the Act. The amendments were made following consultations between the Attorney-General and the Minister for Foreign Affairs, who concluded that it was appropriate to update the list of declared foreign countries in light of the current circumstances and activities of Australians in these regions.
Scope and Application
The Crimes (Overseas) Act 1964, as amended by the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2009 (No. 1), extends the application of the criminal laws of the Jervis Bay Territory to Australian citizens and permanent residents working overseas in certain categories and countries. This extension ensures consistency with other Commonwealth legislation that applies criminal law extraterritorially. The Act applies to Australian citizens and permanent residents who are working for, or on behalf of, the Commonwealth in specified foreign countries, which are designated as declared foreign countries through the regulations. The geographic reach of this Act is extraterritorial, applying to Australians in specific foreign nations. The declared foreign countries under these regulations are Afghanistan, Iraq, Papua New Guinea (PNG), and Solomon Islands, effective from 1 July 2009 until 1 July 2014. Jordan has been removed from the list of declared foreign countries as there are currently no Australians working for, or on behalf of, the Commonwealth in that country. The regulations are made under the authority of the Attorney-General, who, after consulting the Minister for Foreign Affairs, is satisfied that it is appropriate to make these regulations based on the specified criteria. The Regulations are a legislative instrument under the Legislative Instruments Act 2003 and do not require consultation as they do not substantially alter existing arrangements.
Key Provisions
The main operative sections of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2009 (No. 1) pertain to the declaration of foreign countries under the Crimes (Overseas) Act 1964. Section 3 of the Regulations provides that Iraq, Solomon Islands, and Papua New Guinea (PNG) will be re-listed as declared foreign countries, while Afghanistan will be added to the list. Additionally, Jordan will be removed from the list of declared foreign countries (reg 3). These countries will start being declared foreign countries on 1 July 2009 and will cease to be declared foreign countries on 1 July 2014 (reg 4).
The Regulations impose obligations and requirements on Australian citizens and permanent residents working for, or on behalf of, the Commonwealth in Afghanistan, Iraq, PNG, and Solomon Islands. These individuals will be subject to Australian criminal jurisdiction under the Crimes (Overseas) Act 1964 while working in these declared foreign countries (s 3(1)). This means that they must adhere to Australian criminal laws, even when operating outside of Australia. The Regulations also require the Attorney-General, in consultation with the Minister for Foreign Affairs, to be satisfied that it is appropriate to make the Regulations, considering factors such as the nature of activities, the number of Australians involved, and the circumstances in which they are subject to foreign criminal laws (s 3C(4)).
Failure to comply with the provisions of the Crimes (Overseas) Act 1964 and the Regulations may result in criminal and civil consequences. Offences under the Act can result in fines and imprisonment, with maximum penalties depending on the specific offence. For example, section 5 of the Act provides that a person who commits an offence outside Australia that, if committed in the Jervis Bay Territory, would be an offence under Australian law, is guilty of an offence and may be subject to a fine not exceeding 50 penalty units or imprisonment for a term not exceeding two years, or both. In addition, civil penalties may apply for breaches of the Regulations, with maximum fines depending on the nature and severity of the breach.
The Regulations also include provisions for the commencement and application of the amendments. The Regulations will commence on 1 July 2009 and will apply to activities engaged in by Australians in the declared foreign countries during the specified period (reg 4). The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003, and consultation was not necessary for this legislative instrument as it does not substantially alter existing arrangements and has no direct or indirect effect on business.