Commonwealth Numbered Regulations - Explanatory Statements
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CRIMES (OVERSEAS) (DECLARED FOREIGN COUNTRIES) REGULATIONS 2019 (F2019L00215)
EXPLANATORY STATEMENT
Issued by authority of the Attorney-General
Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Regulations 2019
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 who are undertaking a task, project or other function at the direction of, or on behalf of, the Commonwealth. The extension of the criminal law of the Jervis Bay Territory is consistent with other Commonwealth legislation that applies criminal law extraterritorially, for example, the Defence Force Discipline Act 1982, the Crimes (Aviation) Act 1991, and the Crimes at Sea Act 2000.
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.
Section 3C of the Act specifies that a country may be declared by regulations to be a country to which the Act applies, by listing them as a 'declared foreign country'. The declaration of a country ensures that 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 are unable to prosecute, or choose not to prosecute, or if it would be more appropriate for that person to be prosecuted in Australia.
The Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the 2003 Regulations) declared five countries (Afghanistan, Iraq, Nauru, Papua New Guinea and Solomon Islands) for the purposes of section 3C of the Act and the dates on which they started and ceased to be a 'declared foreign country' as required under subsection 3C(3).
Four of the countries that were declared under the 2003 Regulations were scheduled to expire on 30 June 2019 (Afghanistan, Iraq, Papua New Guinea and Solomon Islands). The 2003 Regulations were also due to sunset on 1 April 2020 pursuant to section 50 of the Legislation Act 2003.
The purpose of the Crimes (Overseas) (Declared Foreign Countries) Regulations 2019 (the 2019 Regulations) is to remake the 2003 Regulations to ensure the Commonwealth's activities in each of the countries that were declared can continue. Each of the five countries declared under the 2003 Regulations are re-declared from 1 July 2019 to 30 June 2024 under the 2019 Regulations.
Iraq and Solomon Islands have both been declared since 2003; Afghanistan and Papua New Guinea have been declared since 2004; Nauru has been declared since 2012. The categories of Australians currently working for, or on behalf of, the Australians in each 'declared foreign country' include diplomatic, security and civilian staff attached to the relevant Australian Embassy or High Commission, Australian Defence Force personnel, Australian Federal Police appointees, advisers associated with Australian aid programs, private contractors, and staff of not-for-profit organisations.
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:
* whether the Act would apply to Australians in relation to acts 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 Minister for Foreign Affairs was consulted and supported the re-declaration of each of the five countries until 30 June 2024.
The 2019 Regulations do not affect Australians in Iraq, Solomon Islands, Papua New Guinea, Afghanistan or Nauru for purposes unrelated to the Commonwealth. Consultation outside the Australian Government was not undertaken for the Regulations as they relate to criminal justice and law enforcement matters.
Details of the 2019 Regulations are set out in the Attachment.
The 2019 Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Minute recommends that the 2019 Regulations be made in the form proposed.
ATTACHMENT
Details of the proposed Crimes (Overseas)(Declared Foreign Countries) Regulations 2019
Section 1 - Name of the Regulations
This section provides that the title of the Regulations is the Crimes (Overseas) (Declared Foreign Countries) Regulations 2019.
Section 2 - Commencement
This section provides that the Regulations commence on 1 July 2019.
Section 3 - Authority
This section specifies that the Regulations are made under the Crimes (Overseas) Act 1964.
Section 4 - Schedules
This section provides that each instrument specified in the Schedule to the instrument is amended or repealed as set out in the Schedule.
Section 5 - Definitions
This section provides that references to 'Act' means the Crimes (Overseas) Act 1964.
Section 6 - Declared foreign countries
This section provides that Afghanistan, Iraq, Nauru, Papua New Guinea and Solomon Islands are each a declared a foreign country for the purposes of section 3C(1)(a) of the Act, commencing on 1 July 2019 and ceasing on 30 June 2024.
Section 7 - Transitional
This section provides that, despite the repeal of the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 by Schedule 1 to the instrument, those regulations, as in force immediately before 1 July 2019, continue to apply in respect of an act of a person in a foreign country that occurred before that day.
Schedule 1 - Repeals
The Schedule repeals the whole of the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003.
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) Regulations 2019
The Regulations are 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 Regulations
The Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the 2003 Regulations) provide that Iraq, Solomon Islands, Papua New Guinea, and Afghanistan are each a 'declared foreign country' for the purposes of the Crimes Overseas Act 1964 (the Act) until 30 June 2019. Nauru is a 'declared foreign country' under the 2003 Regulations, for the purposes of the Act, until 9 December 2022.
The 2003 Regulations are due to sunset on 1 April 2020. The Crimes (Overseas) (Declared Foreign Countries) Regulations 2019 (the 2019 Regulations) are proposed in order to re-make the 2003 Regulations for the purposes of the sunsetting regime. The re-make also achieves the dual purpose of extending the declarations for those countries that are due to expire in 2019 (until 30 June 2024), rather than undertaking these processes separately.
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 the criminal laws of the Jervis Bay Territory is consistent with other Commonwealth legislation that applies criminal law extraterritorially (for example, the Defence Force Discipline Act 1982, Crimes (Aviation) Act 1991 and the Crimes at Sea Act 2000).
The Act may be extended by regulations to apply to Australian citizens or permanent residents who are 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 a foreign country (relevant person(s)), where the foreign country is a 'declared foreign country'.
The declaration of Iraq, Solomon Islands, Papua New Guinea, Afghanistan and Nauru (the declared countries) under the Act enables Australian authorities to prosecute relevant persons for conduct in these countries that does not constitute an offence in these countries but would constitute an offence under the law of the Jervis Bay Territory. The listing of the declared countries also gives Australia jurisdiction where the conduct engaged in by the relevant person constitutes an offence against local law, but the local authorities are unable or choose not to prosecute, or where it is more appropriate for the person to be prosecuted in Australia.
The Regulations will not affect Australians employed in the declared countries for purposes unrelated to the Commonwealth.
Human Rights Implications
The Regulations engage the following human 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 and liberty of movement under Articles 9(1) and Article 12 of the ICCPR, and
- the rights to equality and non-discrimination in Article 2(1) and Article 26 of the ICCPR.
Right to a fair trial
The Regulations engage the rights to a fair trial and the minimum guarantees in criminal proceedings. Article 14 of the ICCPR provides that everyone shall be entitled to a fair trial and provides for 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, amongst other things, the right to a fair hearing and the right of a person to have a sentence or conviction reviewed by a higher court.
While the Regulations engage the rights in Article 14 by extending the Australian criminal justice system, it does not limit these rights or otherwise alter Australia's laws or arrangements in relation to criminal procedure, or create new criminal offences. It will only operate to extend the criminal law of the Jervis Bay Territory to apply with extraterritorial effect to relevant persons in the declared countries, in the same way it 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. All of the safeguards in place under Australian law to protect the rights of individuals in criminal investigations and prosecutions would therefore also apply to those persons. Thus, persons prosecuted under the Act will be guaranteed the rights contained in Article 14.
Rights to freedom from arbitrary detention and liberty of movement
The Regulations engage the rights to freedom from arbitrary detention and liberty 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 the circumstances, must be aimed at achieving a legitimate objective and also be reasonable, necessary and proportionate. Article 9 also provides for certain requirements in relation to arrest and detention, such as the requirement that an arrested person is 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 liberty of movement. 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.
The Regulations engage this right by extending section 6 of the Act to apply to relevant persons alleged to have committed a criminal offence on each of the declared countries. Section 6(1) of the Act permits a Commonwealth officer to arrest without warrant an individual who they have reasonable grounds to suspect has committed, is committing, has attempted to commit or is attempting to commit an offence against the laws applied under the Act. Section 6(2) authorises a Commonwealth officer to hold the person arrested in custody until they can be brought before a Justice of the Peace or other proper authority in Australia.
The limitation of these rights under the Regulations is permissible because the limitation is aimed at achieving a legitimate objective and is reasonable, necessary and proportionate. The limitation is reasonable and necessary to ensure that there is a comprehensive and appropriate scheme of criminal sanctions in place to govern the conduct of relevant persons in the declared countries. Proportionality is provided by subsection 6(3) of the Act which requires an individual to be held in custody for 'no longer than is reasonably necessary in the circumstances'. Furthermore, the requirement that the arrested person be brought before the proper Australian authority ensures the safeguards in place under Australian law regarding arrested persons will apply. This limitation is necessary to protect the rights and freedoms of others, specifically the residents of the declared countries.
Rights of equality and non-discrimination
The 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 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'.
The effect of the Regulations would be to apply the Act to a selective category of persons, being Australian citizens or permanent residents undertaking a task or project, or performing a function, on behalf of the Commonwealth, or pursuant to directions given by or on terms determined by the Commonwealth in each of the declared countries. This may constitute 'other status'.
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 purpose which is legitimate. This test is set out in the Human Rights Committee's General Comment No. 18: Non-Discrimination. Although the Regulations would apply the Act and, therefore, the Jervis Bay Territory criminal law selectively, it is reasonable for Australia to be able to hold persons deployed by the Commonwealth to each of the declared countries accountable for their conduct in country that would be in violation of Australia's criminal law. The five countries are proposed to be re-declared foreign countries for the purposes of the Act as there continue to be a significant number of Australians engaged in Commonwealth related activities in them.
The legitimate purpose pursued by the Regulations is to ensure that there is a comprehensive and appropriate scheme of criminal sanctions in place to govern the conduct of relevant persons in the declared countries. The Regulations are reasonable and objective as they ensure that persons are not shielded from criminal sanctions that they would otherwise be subjected to under Australian law if. for example, they are committed in situations where the declared countries would be unable to prosecute the person because the conduct they engaged with 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.
For these reasons, the Regulations are compatible with the rights to equality and non‑discrimination.
Conclusion on the Regulations and human rights implications
The Regulations are compatible with human rights because to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.