Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025

Crimes (Overseas) (Declared foreign countries) amendment regulations 2025

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

in compliance with section 15J of the Legislation Act 2003

Purpose and operation of the Instrument

The Crimes (Overseas) Act 1964 (Cth) (the Act) extends the application of Australian criminal law (as it applies in the Jervis Bay Territory) extraterritorially to certain categories of Australian citizens or permanent residents in foreign countries. Under section 3A of the Act, this includes Australians undertaking a task or project or performing a function on behalf of the Commonwealth in a foreign country that is a ‘declared foreign country’ for the purposes of the Act. These are Australians who typically do not hold immunity (e.g. diplomatic or consular) from the domestic laws in the foreign country and so may be subject to prosecution under the foreign country’s laws.

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 provides that regulations may declare a foreign country (or part of one) as a declared foreign country (or part thereof) for the purposes of the Act. The declaration of a country enables Australia to exercise criminal jurisdiction over Australians who are in that country in connection with Commonwealth activities. This provides greater assurance regarding the conduct of Australians undertaking activities on behalf of the Commonwealth by ensuring Australian criminal law can apply in cases where the foreign country’s criminal laws may be less comprehensive than Australian criminal laws. It also ensures Australia can prosecute an individual to whom the Act applies if the foreign authorities are unable to prosecute, choose not to prosecute, or if it would be more appropriate for that person to be prosecuted in Australia and provides that Australians are afforded the guarantees and standards of Australia’s criminal justice system.

The Attorney-General may list declared foreign countries via regulations where satisfied of certain criteria set out in subsection 3C(4) of the Act and following consultation with the Minister for Foreign Affairs. Per subsection 3C(3), the Act provides that countries can only be listed for a set period. The Crimes (Overseas) (Declared Foreign Countries) Regulations 2019 (the 2019 Regulations) declared Afghanistan, Iraq, Nauru, Papua New Guinea and Solomon Islands as declared foreign countries until 30 June 2024. As of 1 July 2024, these countries were no longer declared foreign countries.

The purpose of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025 (the 2025 Amendment Regulations) is to amend the list of declared foreign countries to extend the application of Australian criminal law to Australians in those countries under the Act.

Based on consultation with relevant Commonwealth departments and agencies who deploy and/or contract Australians overseas, the 2025 Amendment Regulations declare Iraq, Nauru, Papua New Guinea, Solomon Islands and Vanuatu as ‘declared foreign countries’ from commencement of the 2025 Amendment Regulations until 1 April 2029.

The 2019 Regulations are due to sunset on 1 April 2029. The amendments made by the 2025 Amendment Regulations will align the end dates of the declarations with this sunsetting date. Consulted departments and agencies have advised that, based on current planning, Commonwealth activities in the 5 declared countries are expected to continue until at least April 2029.

Australians currently working for or on behalf of the Commonwealth in the 5 declared foreign countries include diplomatic, consular, public service, security and civilian staff attached to the Australian High Commissions; Australian Defence Force personnel; Australian Federal Police appointees; Department of Home Affairs and Australian Border Force officials; advisers, contractors and volunteers associated with Australian development programs; private contractors; and staff of not‑for‑profit organisations. The declarations do not affect Australians in the listed countries for purposes unrelated to the Commonwealth.

Subsection 3C(4) of the Act provides that, before the Governor-General makes regulations declaring a foreign country for the purposes of the Act, the Minister, after consulting the Minister for Foreign Affairs, must be satisfied it is appropriate to do so, having regard to:

• the circumstances in which the Australians engaged in activities in the foreign country are subject to or immune from the criminal laws in force in the foreign country concerned
• whether the Act would apply to those Australians in relation to acts in the foreign country even if the regulations were not made
• the nature of the activities to be engaged in by the 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, and
• any other relevant matter.

The Minister for Foreign Affairs was consulted and supported the declaration of Iraq, Nauru, Papua New Guinea, Solomon Islands and Vanuatu as declared foreign countries until 1 April 2029. The Attorney‑General, as the Minister responsible for the Act, is satisfied that the declarations are appropriate, having regard to the above factors.

The 2025 Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003 and are authorised under paragraph 3C(1)(a) of the Crimes (Overseas) Act 1964.

Details of the 2025 Amendment Regulations are set out below in Attachment A.

A statement of compatibility with human rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is at Attachment B.

Documents incorporated by reference

The instrument does not incorporate any documents by reference.

Consultation

In preparing the 2025 Amendment Regulations, the Attorney-General’s Department consulted relevant Commonwealth departments and agencies with Australian staff and contractors based overseas to inform advice to the Attorney‑General on the declaration of declared foreign countries. The department consulted the Australian Border Force, Australian Federal Police, Department of Defence, Department of Foreign Affairs and Trade and the Department of Home Affairs.

Consultation outside Commonwealth departments and agencies was not undertaken as the 2025 Amendment Regulations relate to criminal justice and law enforcement matters for Australian officials, contractors and volunteers employed overseas by the Australian Government. Consultation within Government was sufficient to obtain detail on the relevant factors under subsection 3C(4) to inform the Attorney-General’s decision.

ATTACHMENT A

NOTES ON SECTIONS

Details of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025

Part 1 – Preliminary

Section 1 – Name

Section 1 provides that the title of the instrument is the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025.

Section 2 – Commencement

This section provides that the instrument commences on the day after the instrument is registered.

Section 3 – Authority

This section provides that the instrument is made under the Crimes (Overseas) Act 1964.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Crimes (Overseas) (Declared Foreign Countries) Regulations 2019

Item 1

Item 1 repeals paragraph 6(1)(a) of the 2019 Regulations that declares Afghanistan as a ‘declared foreign country.’ Afghanistan is not proposed to be re-declared based on the advice of relevant departments and agencies that no Australians are currently undertaking work on behalf of the Commonwealth in Afghanistan.

Item 2

Item 2 amends subsection 6(1) of the 2019 Regulations to declare Vanuatu as a ‘declared foreign country.’ Consultation with relevant Commonwealth departments and agencies that employ staff overseas highlighted the need to declare Vanuatu under the Regulations owing to the increased presence of Australians undertaking Commonwealth-related activities in Vanuatu.

Item 3

Item 3 amends the date on which the countries listed at subsection 6(1) commence being ‘declared foreign countries.’ The item omits the current commencement date of 1 July 2019 and substitutes it with a new commencement date, being the day on which the 2025 Amendment Regulations commence.

Item 4

Item 4 amends the date on which the countries listed at subsection 6(1) cease being ‘declared foreign countries.’ The item omits the current end date of 30 June 2024 and substitutes it with a new end date of 1 April 2029. This date has been chosen as the Commonwealth’s activities in the declared countries are expected to continue until at least this time. It also aligns with the sunsetting date of the 2019 Regulations.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025

1.                    This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

1.                    The Crimes (Overseas) Act 1964 (Cth) (the Act) has the effect of extending Australian criminal law (as it applies in the Jervis Bay Territory) extraterritorially to certain categories of Australian citizens or permanent residents in foreign countries. Under section 3A of the Act, this includes Australians undertaking a task or project or performing a function on behalf of the Commonwealth in a foreign country that is a ‘declared foreign country’ for the purposes of the Act. These are Australians who typically do not hold immunity (e.g. diplomatic or consular) from the domestic laws in the foreign country and so may be subject to prosecution under the foreign country’s laws.
2.                    Paragraph 3C(1)(a) of the Act provides that regulations may declare a foreign country (or part of one) as a ‘declared foreign country’ (or part thereof) for the purposes of the Act. The declaration of a country enables Australia to exercise criminal jurisdiction over Australians who are in that country in connection with Commonwealth activities. This provides greater assurances regarding the conduct of Australians undertaking activities on behalf of the Commonwealth by ensuring Australian criminal law can apply in cases where the foreign country’s criminal laws may be less comprehensive than Australian criminal laws. It also ensures Australia can prosecute an individual to whom the Act applies if the foreign authorities are unable to prosecute, choose not to prosecute, or if it would be more appropriate for that person to be prosecuted in Australia and provides that Australians are afforded the guarantees and standards of Australia’s criminal justice system.
3.                    The Attorney-General may list declared foreign countries via regulations where satisfied of certain criteria set out in subsection 3C(4) of the Act and following consultation with the Minister for Foreign Affairs. Per subsection 3C(3), the Act provides that countries can only be listed for a set period. The Crimes (Overseas) (Declared Foreign Countries) Regulations 2019 (the 2019 Regulations) declared Afghanistan, Iraq, Nauru, Papua New Guinea and Solomon Islands as declared foreign countries until 30 June 2024. As of 1 July 2024, these countries were no longer declared foreign countries. As a result, Australia has not been able to exercise criminal jurisdiction over individuals undertaking tasks or functions on behalf of the Commonwealth in these countries since 1 July 2024.
4.                    The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2025 (the 2025 Amendment Regulations) amend the list of ‘declared foreign countries’ to extend the application of Australian criminal law to Australians in those countries under the Act.
5.                    Based on consultation with relevant Commonwealth departments and agencies that deploy and/or contract Australians overseas, the 2025 Amendment Regulations declare Iraq, Nauru, Papua New Guinea, Solomon Islands and Vanuatu as ‘declared foreign countries’ from commencement of the 2025 Amendment Regulations until 1 April 2029.

Human rights implications

1.                    This legislative instrument engages the following rights:

• the rights to a fair trial and minimum guarantees in criminal proceedings in Article 14 of the International Covenant on Civil and Political Rights (ICCPR)
• the right to freedom from arbitrary detention under Article 9(1) and freedom of movement under Article 12 of the ICCPR
• the rights to equality and non-discrimination in Article 2(1) and Article 26 of the ICCPR.

Right to a fair trial

1.                    The 2025 Amendment Regulations engage the rights to a fair trial and minimum guarantees in criminal proceedings. Article 14 of the ICCPR provides that everyone shall be entitled to a fair trial and certain minimum guarantees in the determination of any criminal charge against a person. Article 14 is aimed at ensuring the proper administration of justice by upholding, among other things, the right to a fair, independent and impartial hearing, the right to be tried without undue delay, the right to legal assistance and the right to have one’s sentence or conviction reviewed by a higher court.
2.                    While the 2025 Amendment Regulations engage the rights in Article 14 by extending the Australian criminal justice system, it does not limit these rights, otherwise alter Australia’s laws or arrangements in relation to criminal procedure or create new criminal offences. It operates to extend the criminal law of Jervis Bay Territory to apply with extraterritorial effect to relevant persons in the declared foreign countries in the same way the law applies to persons in Australia. If a person were to be prosecuted under laws applied by the Act, the prosecution would occur in Australia under Australian law. The safeguards in place under Australian law to protect the rights of individuals in criminal investigations and prosecutions would, therefore, also apply to that person. Thus, any individual prosecuted under the Act would be guaranteed the rights contained in Article 14.

Rights to freedom from arbitrary detention and freedom of movement

1.               The 2025 Amendment Regulations engage the rights to freedom from arbitrary detention and freedom of movement. Article 9(1) of the ICCPR protects the right to freedom from arbitrary arrest or detention. The use of the term ‘arbitrary’ means that the detention, in all circumstances, must be aimed at achieving a legitimate objective and be reasonable, appropriate, necessary, just and proportionate.
2.               Article 9 also provides for certain requirements in relation to arrest and detention, such as the requirement that an arrested person be informed of the reason for the arrest and any charges and that they be brought promptly before an officer authorised by law to exercise judicial power. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within that territory, have the right to freedom of movement, including the right to choose where to live and to leave and enter a country. This right may be limited under Article 12(3) where the limitation is provided by law and is necessary to protect national security, public order, public health or morals or the rights and freedoms of others.
3.               The 2025 Amendment Regulations engage these rights as section 6 of the Act applies to relevant persons alleged to have committed a criminal offence in a country declared to be a ‘declared foreign country.’ Section 6(1) of the Act permits a Commonwealth officer to arrest a person without warrant where the officer has reasonable grounds to suspect the person has committed, is committing, has attempted to commit or is attempting to commit an offence in a declared foreign country that is contrary to Jervis Bay Territory criminal law, per subsection 4(1) of the Act. Section 6(2) of the Act authorises a Commonwealth officer to hold the arrested person in custody until they can be brought before a Justice of the Peace or other proper authority in Australia.
4.               The limitation of these rights is permissible as it is aimed at achieving a legitimate objective and is reasonable, necessary and proportionate. Without the Act’s extension of Australian criminal law to Australians working or volunteering in the declared foreign countries, Australian authorities would not be able to investigate or prosecute a person for wrongdoing where their conduct would have constituted an offence had it occurred in Australia.
5.               The objective of the Act and Regulations is to provide greater assurances regarding the conduct of Australians undertaking activities on behalf of the Commonwealth overseas by ensuring Australian criminal law can apply in cases where the foreign country’s criminal justice system may not apply. The Act and Regulations also ensure that Australians will be afforded the guarantees and standards of Australia’s criminal justice system where an investigation and/or prosecution is taken forward.
6.               In this way, the limitation is also reasonable and necessary as it ensures there is a comprehensive and appropriate scheme of criminal sanctions in place to govern the conduct of Australians working on behalf of the Commonwealth in the declared foreign countries. Proportionality is provided by subsection 6(3) of the Act, which requires that an individual be held in custody for no longer than is reasonably necessary in the circumstances. Furthermore, the requirement that the arrested person be brought before a Justice of the Peace or other proper Australian authority ensures the safeguards for arrested persons in place under Australian criminal law will apply.
7.               For these reasons, the 2025 Amendment Regulations are compatible with the rights to freedom from arbitrary detention and freedom of movement.

Rights of equality and non-discrimination

1.               The 2025 Amendment Regulations engage with the rights of equality and non‑discrimination in Articles 2(1) and 26 of the ICCPR. Article 2(1) requires States to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR without distinction of any kind. Article 26 prohibits discrimination in law or in practice in any field regulated by public authorities. The grounds of prohibited distinction or discrimination include race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status. Decisions by the United Nations Human Rights Committee suggest that a clearly definable group of people linked by their common status is likely to fall under the definition of ‘other status.’
2.               The effect of the Amendment Regulations would be to apply the Act to a selective category of persons, these being Australian citizens or permanent residents 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 each of the declared foreign countries. This category of persons may constitute ‘other status.’
3.               Such differences in treatment will not amount to prohibited discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a legitimate purpose. This test is set out in the Human Rights Committee’s General Comment No. 18: Non-Discrimination. Although the 2025 Amendment Regulations would apply Jervis Bay Territory criminal law selectively (i.e. to a select category of people), it is reasonable for Australia to be able to hold to account persons employed by the Commonwealth in the declared foreign countries for conduct in-country where that conduct would be in violation of Australian criminal law if it had occurred in Australia. Further, in the interests of fairness and non‑discrimination, it is necessary and proportionate for an Australian citizen or permanent resident to be held to Australian criminal law standards if that person has committed or attempted to commit an offence in a declared foreign country and where that person’s circumstances (e.g. immunity) or the circumstances of the declared foreign country (e.g. the foreign country’s criminal justice system) means the person would otherwise go unprosecuted for a criminal act.
4.               The legitimate purpose pursued by the 2025 Amendment Regulations is to ensure that there is a comprehensive and appropriate scheme of criminal sanctions in place to govern the conduct of Australians working on behalf of the Commonwealth in the declared foreign countries. The 2025 Amendment Regulations are reasonable and proportionate as they ensure that persons are not shielded from criminal sanctions to which they would otherwise be subjected under Australian law if, for example, the foreign country were unable to prosecute the person because the conduct was not an offence under local law. This ensures there is no jurisdictional gap if the foreign country’s criminal laws are less comprehensive than Australian criminal laws. It also ensures Australia can prosecute an Australian to whom the Act applies if the foreign authorities choose not to prosecute or if it would be more appropriate for that person to be prosecuted in Australia.
5.               For these reasons, the 2025 Amendment Regulations are compatible with the rights to equality and non‑discrimination.

Conclusion on the Regulations and human rights implications

1.               The Amendment Regulations are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.