Commonwealth Numbered Regulations - Explanatory Statements

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CRIMES (OVERSEAS) (DECLARED FOREIGN COUNTRIES) AMENDMENT REGULATIONS 2017 (F2017L01520)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Justice

Crimes (Overseas) Act 1964

Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017

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 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.

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'.

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. Subsection 3C(3) provides that 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'.

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 Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) prescribes countries for the purposes of section 3C of the Act and the dates on which they start and cease to be a 'declared foreign country' as required under subsection 3C(3). Subregulation 8(1) of the Principal Regulations declares Nauru a 'declared foreign country'. Subregulation 8(2) specifies that Nauru commenced being a 'declared foreign country' on 10 December 2012 and will cease to be a 'declared foreign country' on 9 December 2017.

Nauru was prescribed by the Principal Regulations as a 'declared foreign country' in 2012. This was to ensure that the increased presence of Australian personnel in Nauru (due to the establishment of the regional processing centre) were subject to appropriate criminal jurisdiction arrangements. Given the Commonwealth's activities in Nauru are ongoing, it is appropriate that the declaration be extended.

The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017 (the Regulations) amends subregulation 8(2) to specify that Nauru will cease to be a 'declared foreign country' on 9 December 2022. This enables Australian authorities to prosecute 'relevant person(s)' for conduct in Nauru under the law of the Jervis Bay Territory if the local authorities are unable or choose not to prosecute, or where it is more appropriate for the person to be prosecuted in Australia, for a further five year period.

The Regulations do not affect Australians in 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.

The Office of Best Practice Regulation was consulted about the Regulations and advised that a Regulatory Impact Statement is not required.

Details of the Regulations are set out in the Attachment.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commence on the day after they are registered on the Federal Register of Legislation.

ATTACHMENT

Details of the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017

Section 1 - Name of the Regulations

This section provides that the title of the Regulations is the Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017.

Section 2 - Commencement

This section provides that the Regulations commence on the day after they are registered.

Section 3 - Authority

This section specifies that the Regulations are made under the Crimes (Overseas) Act 1964.

Section 4 - Schedules

This section provides that any changes to regulations specified in the Regulations are found in the schedules of the Regulations.

Schedule 1 - Amendments

Crimes (Overseas) (Declared Foreign Countries) Regulations 2003

Item 1

Item 1 omits 2017 from subregulation 8(2)(b) and substitutes 2022. This means that Nauru ceases to be a 'declared foreign country' for the purposes of the Act on 9 December 2022.

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 2017

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 Principal Regulations) provide that Nauru is a 'declared foreign country' for the purposes of the Crimes Overseas Act 1964 (the Act) until 9 December 2017. The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017 (the Regulations) amend the Principal Regulations to ensure that Nauru continues to be a declared foreign country for the purposes of the Act until 9 December 2022.

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.'

Nauru's declaration under the Act enables Australian authorities to prosecute relevant persons for conduct in Nauru that does not constitute an offence in Nauru but would constitute an offence under the law of the Jervis Bay Territory. Nauru's declaration 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 Nauru 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 Nauru, 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.

Right to liberty

The Regulations engage the right to liberty, specifically the right 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 reasonable, necessary and proportionate to the end that is sought. 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 Nauru. 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 this right by the Act 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 Nauru. Proportionately is provided by section 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 Nauru.

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 Nauru. 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 Nauru accountable for their conduct in country that would be in violation of Australia's criminal law.

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 Nauru. 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 Nauru would be unable to prosecute the person because the conduct they engaged with was not an offence under local law.

For these reasons, the Regulations are compatible with the rights to equality and non-discrimination.

Conclusion on the Regulations and human rights implications

While the Regulations engage with and limits several human rights it does so in a reasonable and proportionate way.