Chapter 3 Jurisdiction at sea: international law and domestic law
3.1
The dramatic growth in cruising in Australia and around the world makes
regulation of the industry more important than ever. The inquiry is
particularly focussed on the ability of the Australian Government to improve
crime prevention and investigation on cruise vessels. This ability depends on
both the extent of Australia’s jurisdiction and the vigour of its international
cooperation.
3.2
Questions of jurisdiction at sea – under the system established by the United
Nations Convention on the Law of the Sea 1982 (UNCLOS) – are notoriously
complex and often misunderstood. A key purpose of this inquiry is to ascertain
the scope of Australian jurisdiction and whether Australia is currently
exercising the full extent of this jurisdiction.
3.3
Where Australia is not able to exercise jurisdiction, the inquiry has
investigated the extent to which Australia is actively participating in
international fora and leading international efforts to ensure the safety of
passengers and the full prosecution of crimes committed at sea.
3.4
This Chapter will consider the following questions of jurisdiction and
international cooperation:
n Understanding
jurisdiction.
n Enforcement
jurisdiction under international law:
§
The United Nations Convention on the Law of the Sea 1982 (UNCLOS);
§
Territorial jurisdiction;
§
Extra-territorial jurisdiction;
§
Flag-state jurisdiction; and
§
Legal Advice.
n Domestic Australian
jurisdiction:
§
Crimes At Sea Act; and
§
Criminal Code Act.
n Intergovernmental
cooperation through the International Maritime Organisation.
Understanding Jurisdiction
3.5
Crimes committed at sea present a ‘dynamic legal scenario’[1]
where international law recognises a multitude of domestic jurisdictions
existing concurrently. At all times, a ship is subject to the domestic laws of
the country in which it is registered, but it can also be within the
territorial jurisdiction of another country whilst transiting its waters and in
its ports, and thereby subject to that second country’s laws.
3.6
Further, where a citizen is involved in a criminal offence, either as an
alleged perpetrator or as a victim, their country of citizenship is recognised
under international law as also having jurisdiction to investigate and
prosecute the crime. A criminal act committed on board will therefore often
lead to potentially competing jurisdictional claims.[2]
3.7
Jurisdiction refers to the ability of a country both to make and to
enforce its laws. It is generally considered that there are two basic types of
jurisdiction: prescriptive jurisdiction and enforcement jurisdiction.
Prescriptive jurisdiction is the power to regulate people and situations
regardless of their location. Enforcement jurisdiction on the other hand is the
ability of a country to legally arrest, try, convict and gaol an individual for
a breach of its laws.[3]
3.8
It is important to note that the ability to legislate in relation to
particular conduct may not necessarily give rise to a corresponding power of
enforcement with respect to that same conduct.[4] The subject of this
inquiry has raised questions of both prescriptive jurisdiction and enforcement
jurisdiction.
3.9
Many of the victims’ groups that participated in the inquiry campaign to
prevent accidents and crime as a primary focus. Preventative measures
– through better regulation, consumer information and vessel equipment – rely
on prescriptive jurisdiction. The investigation and prosecution of crimes,
through enforcement jurisdiction, is usually a secondary aim.
3.10
However, in the context of crimes at sea, international law limits
Australia’s prescriptive jurisdiction to pass laws and regulations about the
design, construction, manning and equipment of foreign ships unless those laws
give effect to generally accepted international standards or rules.[5]
Similarly, international law places limitations upon Australia’s law enforcement
authorities (both federal and state or territory) to investigate alleged
criminal conduct.
3.11
Clearly establishing the circumstances in which Australia may claim
jurisdiction is important for ascertaining the duties of domestic law
enforcement agencies and the challenges they encounter. It is also important to
guide this Committee about the kinds of recommendations it may make to the
Australian Government.
3.12
The Committee obtained legal advice from the Australian Government
Solicitor on a number of issues, including the impact of jurisdictional
limitations on Australia’s legislative options in this area. As noted in
Chapter 1, the Legal Advice is included at Appendix D.
3.13
Given the severe limitations on both enforcement and prescriptive
jurisdiction, there is a pressing need for the Australian Government to ensure
it utilises the full extent of its jurisdiction to address both prevention and
justice for crimes at sea. Where the limits of jurisdiction bar Australia from
taking action, the Australian Government must lead international efforts to
improve safety and justice for cruising passengers.
Enforcement jurisdiction under international law
3.14
A country will only be entitled to prosecute a crime (exercising
enforcement jurisdiction) if it has recognised grounds to claim jurisdiction
over the event in international law, and its domestic law expressly asserts
that jurisdiction.[6]
3.15
As a matter of general international law, a country may invoke
jurisdiction – and apply its domestic laws and enforce sanctions for criminal
conduct – in a variety of circumstances, including:
n Where criminal
conduct occurs within their territory (territorial principle);
n Where one of their
citizens is involved (for example, as either a victim or perpetrator) in the
crime (nationality principle and the passive personality principle);
n Where the conduct is
so heinous and so widely condemned that all nations proscribe and punish its
occurrence (for example, piracy, genocide and hostage taking) (universal
principle); and
n Where the criminal
conduct has a significantly adverse impact on its national security or
governmental process (protective principle).[7]
3.16
Importantly, general international law recognises a multiplicity of
jurisdictions existing concurrently. Dr Kate Lewins, a specialist in international
maritime law at Murdoch University, submitted:
The result, more often than not, is that there might be
multiple [countries] entitled to claim jurisdiction over a particular criminal
act, based on the flag and location of the ship and the nationalities of the
people involved. [Which country will take the lead] may well end up being one
negotiated through diplomatic channels, largely based on pragmatism.[8]
United Nations Convention on the Law of the Sea 1982 (UNCLOS)
3.17
The international rules and principles governing the regulation of ocean
space are captured by UNCLOS. Participating in all three negotiating
conferences on the Law of the Sea (1958, 1960 and 1973-1982), Australia became
a party to UNCLOS in 1994, the year that UNCLOS came into force.
3.18
UNCLOS accords countries with specific jurisdictional zones and
corresponding rights in ocean space adjacent to their territory. Territorial
jurisdiction operates like concentric circles, ranging from full territorial
sovereignty within internal waters, to almost no sovereign rights on the high
seas. As demonstrated in Figure 1, these maritime zones are measured from the
Territorial Sea Baseline (TSB), the low-water line along the coast.
Figure 1 Maritime zones
3.19
Under UNCLOS, the zones in which Australia can exercise its territorial
jurisdiction can be classified in the following order (with diminishing
capacity to enforce domestic law the further out from the TSB):
n Internal waters (all
waters landward of the TSB);
n Territorial sea (12
nautical miles (nm) from the TSB)
n Contiguous zone (from
12nm to 24nm from the TSB);
n Exclusive economic
zone (no further than 200nm from the TSB);
n Continental shelf;
and
n High seas.
3.20
High seas, or ‘international waters’, are ‘open to all States, whether
coastal or land-locked’.[9] International waters are
considered to be outside the territorial jurisdiction of any country.
However, in limited circumstances, Australia may exercise extra-territorial
jurisdiction.
3.21
Both territorial jurisdiction and extra-territorial jurisdiction are
discussed below.
Territorial jurisdiction
3.22
There are two categories of territorial jurisdiction that would allow
Australia to enforce its criminal laws against an alleged criminal act
committed whilst at sea: Port State jurisdiction and Coastal State
jurisdiction.[10] Jurisdiction beyond
these two categories – in the ‘contiguous zone’ and the ‘exclusive economic
zone’ – is severely limited, and will be discussed briefly below.
Port state jurisdiction
3.23
If a criminal act occurred when the ship is in internal waters (all
waters landward of the TSB) having visited a port or about to visit a port, or
when the ship has departed the port and is now in the territorial sea of
Australia (12nm from the TSB), then Australia can claim jurisdiction over the
alleged criminal offence, provided that the relevant criminal legislation
expresses its extra-territorial application.[11]
3.24
However, minor matters, such a petty theft, are often left to the Master
of the Ship. Dr Lewins explains:
… it is commonplace for the port State to leave the minor
matters on board to the so called ‘internal economy’ of the ship. The ship is
not, after all, a lawless place; as the laws of the flag State apply to it.[12]
3.25
The concept of a ‘flag State’ and its jurisdiction are described later
in this Chapter.
3.26
More significant crimes, such as assault, manslaughter or murder, are
said to engage the ‘interests’ of the port State. Consequently, the laws of the
port State can and will apply as their enforcement is an exercise of
sovereignty and relate to the ‘peace, good order and government’ of the State.[13]
Coastal state jurisdiction
3.27
Under limited circumstances, a coastal State may exercise its
territorial jurisdiction if the ship is not visiting a port of that State but
is travelling through its territorial sea (out to 12 nm from the TSB).
3.28
UNCLOS provides that a State may only exercise this type of jurisdiction
where:
n The ‘consequences’ of
the crime extends to the coastal State;
n Is of a kind to
disturb the peace of the State or the good order of the State’s territorial
sea;
n If the assistance of
the State is requested by the Master of the Ship; or
n The matter involves
the specific case of the illicit traffic of narcotic drugs.[14]
3.29
Commenting on the connection between enforcement jurisdiction and
prescriptive jurisdiction, Dr Lewins disputes the position set out in the
Government Response. She considers that coastal State authority enables
Australia to make entry to Australian ports or internal waters conditional upon
compliance with certain regulations:
I do believe that Australia is entitled to impose certain
regulations on ships that visit its ports, and to this extent I respectfully
disagree with the government response to [the Milledge recommendations]. I view
the ability to regulate as stemming from the fact that we are allowing these
vessels into our ports and we have an entitlement then—a sovereign
entitlement—to dictate the terms of that entry. … I do not believe that
measured regulations would interfere with our obligation to allow innocent
passage through territorial waters, which I think is a slightly different
point.[15]
Jurisdiction in the Contiguous and Exclusive Economic Zones
3.30
Australia may only exercise control in the contiguous zone that is
necessary to prevent or punish infringement of customs, fiscal, immigration or
sanitary laws and regulations.
3.31
Similarly, Australia may only exercise jurisdiction over its exclusive
economic zone and continental shelf for purposes relating to economic
exploitation and environmental protection. This does not extend to criminal
matters.
3.32
Should Australia wish to exercise jurisdiction over an alleged crime
occurring within its contiguous zone, exclusive economic zone, continental
shelf or on the high seas, it can only do so under certain circumstances. Such
an exercise of jurisdiction is called extra-territorial jurisdiction. Extra-territorial
jurisdiction is provided in general international law and is beyond the scope
of UNCLOS.
Extra-territorial jurisdiction
3.33
Countries can claim extra-territorial jurisdiction, concurrent with flag
state jurisdiction, over crimes committed on foreign-flagged ships that occur
beyond its territory based on a number of principles.
Next port jurisdiction
3.34
Australia may validly exercise jurisdiction over an alleged crime on
board a ship beyond the territorial sea if that ship next docks in an
Australian port.[16]
3.35
In such circumstances, it is common for the Master of the ship to report
the incident to the authorities of the next-port State. In practice, Dr Lewins
explains, this means that Australian authorities would lead subsequent
investigations and the collection of evidence. Depending on the nature of the
alleged crime, it may also mean that Australian authorities detain the accused.[17]
3.36
This claim for extra-territorial jurisdiction is provided under the Crimes
at Sea Act 2000 (Cth) which is discussed further below.[18]
3.37
Even where criminal proceedings are commenced in an alternative
jurisdiction, such as that of the flag-state, the investigative work of the
next-port jurisdiction may be strongly relied upon in those proceedings.
Jurisdiction based on the nationality of the accused or victim
3.38
As noted above, Australia may claim jurisdiction under general
international law where an Australian citizen is either an accused or a victim
of the alleged crime. These are understood as the nationality principle and the
passive personality principle respectively.
3.39
International law provides that when a criminal act is committed by an
Australian citizen, Australia has the power to prosecute that citizen according
to its domestic laws no matter where the crime took place.[19]
3.40
The Crimes at Sea Act 2000 (Cth) applies Australian
criminal law extraterritorially using the above two principles. Beyond 200 nm
from the TSB, or the outer limit of the Continental Shelf (the high seas), the
criminal law of the Jervis Bay Territory applies to a criminal act on an
Australian ship, by an Australian citizen (other than a crew member) on a
foreign-flagged ship, or by any person on a foreign-flagged ship whose next
port of call is Australia.[20] This is further
explained in the next section, regarding Australian domestic jurisdiction.
3.41
The passive personality principle provides for Australia to prosecute
crimes committed against its own citizens outside its territory under certain
circumstances.[21] Following the 2002
terrorist bombings in Bali, Australia relied on this principle to pass
legislation to this effect.[22]
3.42
Dr Lewins suggested that this might enable Australia to prosecute crimes
committed against Australians on board a ship at sea:
Where a crime occurs on a cruise ship, legislation that
relies on passive personality principles to ground an assertion of jurisdiction
over a particular crime might well be justified in circumstances where the flag
State does not intend to prosecute. [This] is a realistic scenario given that
most cruise ships are flagged in open registries. Therefore this head of
jurisdiction may be useful for a State looking to ensure that the accused is
required to face due process in their courts if the alternative is that the
accused will not face justice at all.[23]
3.43
Dr Lewins told the Committee that Australia should apply the passive
personality principle to crimes committed at sea:
If there are other reasons we could claim jurisdiction over
things that happen on that outward voyage then I believe we should do so. We
already claim it on the whether the accused is Australian—I say we should also
claim it if the victim is Australian. This notion that we can claim
jurisdiction over criminal acts where an Australian is the victim anywhere in
the world has been controversial in the past, but we are suitably deferential
to the overriding right of the flag state to deal with things. It is a useful
second stage. In fact, it becomes the de facto first stage because so often the
flag state is not in a position to deal with criminal acts on board its many
ships.[24]
3.44
Currently the United States is the only country to apply the passive
personality principle specifically to crimes committed at sea, claiming
jurisdiction in relation to a crime committed by or against an American
national on the high seas or on any voyage that departed from or arrived in the
United States.[25]
Flag state jurisdiction
3.45
As indicated above, under UNCLOS the flag state (the country in which
the ship is registered) has primary responsibility over its ship, including
criminal jurisdiction, even when the ship is outside the flag state’s
territorial waters.[26]
3.46
However, given that vessels are generally flagged in distant states,
flag states’ ability to play an active role in investigations and/or
prosecutions can be extremely limited.
3.47
This head of jurisdiction is unlikely to be invoked by Australian law
enforcement as few ships are registered in Australia, other than passenger
ships such as Spirit of Tasmania and merchant ships. Of particular
relevance to this inquiry, no cruise ships are registered in Australia.[27]
3.48
Ms Camille Goodman, from the Attorney General’s Department, explained
how the laws of the flag-state are ‘carried’ by the vessel:
A general principle is that … the internal operation of a
ship which is regulated by the laws of a foreign state on an ongoing basis, as
ships move around the world and the general law that the flag state has primacy
of jurisdiction on the high seas.[28]
3.49
Evidence received during the inquiry indicated that in many cases, the
flag state is simply a flag of convenience and does not have the interest, will
or resources to deal with a crime.[29] In such cases, other
states with concurrent jurisdiction may be able to come to an agreement with
the flag state to investigate and prosecute the alleged crime.
Legal Advice
3.50
The preceding paragraphs of this Chapter amply demonstrate the
complexity of international law as it applies to vessels that travel
internationally. Various sources of evidence to the inquiry have pointed out
that this is a notoriously complex area of law that does not readily provide
rules for straightforward application. For example, the Attorney-General’s
Department submitted that:
In practice, the application of these principles [of
international law] requires a balancing of the rights and obligations of flag
States and coastal States, as well as a consideration of both Australia’s
international legal obligations and matters of international practice and
comity.[30]
3.51
The Milledge Recommendations suggested Australia consider passing
legislation that would be similar in effect to the Kerry Act. Evidence
to the inquiry supported such a step.[31] However, the Government
Response indicated that it does not support the adoption of legislation similar
to the Kerry Act in Australia, saying:
The Government considers that the current arrangements
already cover the areas raised in the Kerry Act to the extent possible under
Australia's obligations pursuant to
international law.[32]
3.52
This question of whether Australia has the jurisdiction to enact
legislation similar to the Kerry Act was a contentious issue during the
inquiry. The Attorney-General’s Department reiterated the position put forward
in the Government Response:
In particular, under article 21 of [UNCLOS] we cannot pass
laws and regulations about the design, construction, manning or equipment of
foreign ships unless they are giving effect to generally accepted international
standards or rules. That makes it very difficult for Australia to pass
something analogous to the Kerry act.[33]
3.53
However, Dr Kate Lewins, for example, submitted that:
While Australia might consider it unpalatable to demand ship
design or infrastructure changes such as heightened ship rails, it could
nonetheless introduce a version of [the Kerry Act] dealing with, for
example, on board CCTV monitoring, formal reporting standards for criminal acts
aboard, and requiring evidence of training in medical treatment for sexual
assault, and crime scene management.[34]
3.54
The Committee sought to establish definitively whether Australia would
be able to enact legislation similar to the Kerry Act. To this end, it
decided to obtain legal advice, which is referred to in various parts of this
report. Whilst the Legal Advice gave the opinion that certain measures covered
by the Kerry Act could be regulated under Australian law, it did not
support a general adoption of similar legislation in Australia.
Jurisdiction under domestic Australian maritime law
3.55
If it can be established that Australia has jurisdiction relating to a
matter under international law, the next step is to consider how the matter is
dealt with under domestic law. As a federation, there are divisions of
jurisdiction depending on where crimes occur in Australia.
3.56
To resolve complexities presented by Australia’s federal system, the
Australian Government, the States and the Northern Territory agreed in November
2000 to a cooperative scheme that provides clarity to the overlapping
jurisdictions at the different levels of government. This scheme is referred to
as the Intergovernmental Agreement – Crimes at Sea 2000 (the
Intergovernmental Agreement).[35]
3.57
The Intergovernmental Agreement provides for the extraterritorial
application of the criminal law of the States in the waters adjacent to the
coast of Australia. It also provides for the division of responsibility for administering
and enforcing the law relating to crimes at sea.
3.58
The cooperative scheme is given the force of law by the following:
n Crimes at Sea Act
2000 (Commonwealth);
n Crimes at Sea Act
1998 (New South Wales);
n Crimes at Sea Act
1999 (Victoria);
n Crimes at Sea Act
2001 (Queensland);
n Crimes at Sea Act
2000 (Western Australia);
n Crimes at Sea Act
1998 (South Australia);
n Crimes at Sea Act
1999 (Tasmania); and
n Crimes at Sea Act
2000 (Northern Territory).
3.59
The application of Australian criminal law to matters beyond 200nm can
only be applied to an act committed on an Australian ship, an act committed by
or against an Australian citizen, or to instances on board a non-Australian
ship not involving an Australian citizen but where the next port of call is an
Australian port or an external territory of Australia.[36]
This reflects the international jurisdictional rules as explained above,
particularly those under UNCLOS.
3.60
Whenever a Federal, state or territory prosecutor seeks to commence
criminal proceedings for an alleged criminal act on board a foreign-registered
ship, the Federal Attorney-General must give consent before the matter proceeds
to a hearing or determination.[37] The purpose of the
Attorney-General’s consent is to ensure consultation with foreign governments
who hold concurrent jurisdiction, particularly the flag State.
3.61
The Intergovernmental Agreement states that, while the Australian
Government, the States and the Northern Territory are empowered under the
cooperative scheme to investigate and prosecute crimes that fall within their
relevant jurisdictions, the applicable international legal obligations must be
observed:
In exercising or performing powers, duties and functions
under the cooperative scheme, the parties and their agencies must act so as to
avoid any breach by Australia of its international obligations, in particular
under the United Nations Convention on the Law of the Sea, having regard
especially to the responsibilities of Australia with respect to ships of the
Australian flag, and to the rights of other countries in the maritime areas to
which the arrangements in this Agreement apply. [38]
3.62
As previously indicated, the Intergovernmental Agreement is given legal
force at the federal level by the Crimes at Sea Act 2000 (Cth) (the
Crimes at Sea Act). The Crimes at Sea Act, and the cooperative
jurisdictional arrangement are further discussed below.
Crimes at Sea Act
3.63
The Crimes at Sea Act provides for the application of Australian
criminal law on a territorial basis. The Crimes at Sea Act is the
primary act that seeks to claim jurisdiction over crimes at sea.
3.64
As explained above, it also gives legislative effect to the cooperative
approach set out in the Intergovernmental Agreement. The agreement provides for
a system to clearly identify the appropriate domestic jurisdiction in
Australia’s federal system when a crime has occurred.
Establishing the relevant domestic jurisdiction in a federal system
3.65
The Crimes at Sea Act establishes three ‘zones’ – the inner
adjacent area, the outer adjacent area and the area outside the adjacent area. These
areas are illustrated in the figure on the following page. Mirroring UNCLOS
maritime boundaries, the ‘inner adjacent area’ is that area within a 12nm belt
of sea as measured from the baseline of the State (its internal waters). The
outer adjacent areas is that area beyond 12nm up to a distance of 200nm from
the baseline for the State or the limit of the continental shelf (whichever is
the greater distance).[39]
Figure 2 Indicative Map
of Intergovernmental Agreement jurisdictions
Source Schedule
1, Crimes At Sea Act 2000
3.66
For criminal acts alleged to have been committed within the adjacent
area (both outer and inner), the cooperative scheme established by the
Intergovernmental Agreement, applies the substantive criminal law of the
adjacent state or territory.[40]
3.67
The cooperative scheme provides that the substantive criminal law of the
state applies to alleged criminal conduct within the inner adjacent area
of a state. The responsibility for commencing prosecutions of such offences generally
rests with the adjacent state’s relevant prosecuting authorities. However, it
is possible for the Commonwealth Director of Public Prosecutions (CDPP) to
conduct such prosecutions in accordance with existing joint trial arrangements
with the states.[41]
3.68
Similarly, the cooperative scheme outlined that in the case of the
outer adjacent area of a State, ‘the provisions of the substantive
criminal law of that State apply by force of the law of the Commonwealth.
Accordingly, offences under the applied State law in the outer adjacent area
are technically Commonwealth offences’.[42] The responsibility to
prosecute alleged offences within this area may rest with the adjacent State,
another State or the Commonwealth. The Intergovernmental Agreement provides
some guidance on this matter and outlines some indicative circumstances to
determine the relevant jurisdiction.[43] Where the authority to
commence a prosecution is contested by multiple jurisdictions, the
Intergovernmental Agreement requires a consultative process to determine how
the matter should proceed.[44]
3.69
For criminal acts alleged to have been committed outside the adjacent
area, the jurisdiction which carries responsibility to investigate and
prosecute is determined in accordance with section 6 of the Crimes at Sea
Act. Commonwealth law, by way of the Jervis Bay territory, applies to
alleged criminal conduct within this area, and consequently, the responsibility
for prosecuting alleged offences rests with the CDPP.
Criminal Code Act
3.70
The Criminal Code Act 1995 (Cth) asserts Australia’s jurisdiction
to alleged criminal conduct where an Australian citizen or resident of
Australia is seriously harmed even where that conduct occurs outside of
Australia’s territory where it can claim jurisdiction. This reflects the
‘nationality principle’ under international law as explained earlier in this Chapter.
3.71
Mr Iain Anderson, First Assistant Secretary, Criminal Justice Division,
from the Attorney-General’s Department commented that the Criminal Code Act:
… does not in itself empower the AFP to go offshore and carry
out investigations. Realistically it is always going to be a question of
negotiations with the jurisdiction where such an offence occurs as to whether
they are going to prosecute and whether we might carry out investigations. That
is just a limitation on the practical utility of those offences.[45]
3.72
The process and challenges of conducting investigations will be
discussed in greater detail in Chapter 5 of this Report.
3.73
As stated earlier, Dr Lewins expressed concern that Australia does not
assert its internationally accepted jurisdiction where an Australian falls
victim to a crime as frequently as when it does where an Australian is the
alleged perpetrator of a crime.[46] Section 115 of the Criminal
Code Act asserts Australia’s jurisdiction over events where an Australian
is a victim of a crime outside of its territory.
3.74
However, Dr Lewins expressed concern that it is not clear how the
assertion of Australian jurisdiction where an Australian is a victim (in line
with the national personality principle) interacts with the Crimes at Sea
Act,[47] where the national
personality principle is not included.
Improvements through international bodies
3.75
Although there are considerable limits on Australia’s ability to pass
legislation about matters in the Kerry Act, Australia has considerable
opportunities to improve cruise passenger safety through multilateral bodies
such as the International Maritime Organisation (IMO).
3.76
The development of consistent international maritime rules is
particularly important for an island nation like Australia, and Australia has a
proud history of involvement in developing international law and regulation
including UNCLOS.
3.77
The Office of International Law at the Attorney Generals’ Department is
currently involved in discussions of this kind within the auspices of the IMO.
Mr Anderson stated:
Australia is also actively involved in seeking to develop or
help negotiate new standards to the extent that that is possible. These things
take a while; UNCLOS itself was negotiated over 200 years. That is a side
process because it is a multilateral process, but the Office of International
Law is involved in discussions with other countries under the umbrella of the
International Maritime Organisation. We are trying to look at the new
standards.[48]
3.78
Australia has been involved in IMO work to develop guidelines for
dealing with crimes on vessels:
Australia actively participates in the IMO Legal Committee
and Australia's engagement is led by our [the Office of International Law,
Attorney-General’s Department]. At the last meeting, in April 2012, Australia
was supportive of the guidelines being included on the committee's work
program.[49]
3.79
Those guidelines are titled Guidelines on the preservation and
collection of evidence following an allegation of a serious crime having taken
place on board a ship or following a report of a missing person from a ship,
and pastoral and medical care of persons affected. The guidelines were
adopted by the IMO Legal Committee in early 2013, and it is widely anticipated
that they will be adopted when they are put to the full IMO Assembly in
November 2013. The guidelines are discussed in greater detail in Chapters 4 and
5.
3.80
This is a good example of the productive work that can be done in
international fora. However, the extent of the Australian Government’s
involvement in this matter is not immediately clear from the records of the IMO
Legal Committee. Although Australia participated in the Committee’s meetings,
other delegations (such as from the Philippines and the United Kingdom) took
leading roles.[50]
3.81
In addition, the matters covered by the guidelines do not exhaust the
avenues for further passenger safety on cruising vessels. Recent tragedies
discussed in Chapter 2 highlight the continuing need for improved vessel
safety. Areas that need urgent international cooperation include:
n The installation of
security cameras with a closed-circuit television monitoring system (CCTV),
including real-time monitoring by security;
n The installation of ‘man-overboard’
alarm systems to alert on-board security to passengers going overboard;
n The adoption of mandatory
crime reporting protocols analogous to those in the Kerry Act (see
Chapter 5); and
n The implementation of
Responsible Service of Alcohol (RSA) protocols (including training) for
bar and security staff.
3.82
Despite the fact that some cruise operators have implemented some of
these measures on certain vessels, there remains no mandatory standard applied
across the industry. These safety measures are discussed further in the
following Chapter.
3.83
It is clear that there is both the need and the opportunity for
Australia to make a much greater contribution to the development of
international standards to improve cruising passengers’ safety.
Committee Comment
3.84
It comes as no comfort to a victim of crime at sea, or to someone who
suffered an accident at sea, or their families, that international law does not
allow for greater Australian regulation of the cruising industry. It is wholly
irrelevant to their needs as victims. The complexity and vagueness of maritime
law and regulation may be an inherent feature of international law today, but
it cannot be an excuse for inaction.
3.85
Australia’s capacity to legislate for particular vessel requirements is
limited, under international law, to matters about which Australia can exercise
prescriptive jurisdiction. The following Chapter outlines actions that the
Australian Government make take in regard to this. UNCLOS provides that states
may not make laws pertaining to the design, construction, manning or equipment
of foreign ships unless according to accepted international standards.[51]
3.86
The Legal Advice confirms the limits of Australia’s capacity for
unilateral regulation of the cruising industry, but this does not preclude
active and creative work to improve safety and justice for cruising passengers
through cooperative international work.
3.87
Pursuing negotiated changes to passenger protection strategies within
the IMO will require long-term commitment. As is often the case with
multilateral organisations, change takes a significant and continued
commitment. Yet, protracted negotiations and debate should not be a deterrent
to pursing valuable endeavours to prevent crimes at sea.
3.88
Indeed, whilst the collaborative nature of international maritime law is
a barrier to Australia unilaterally imposing better regulation of the cruise
industry, the cooperative nature of the international maritime legal system is
also a strength as the reach of its standards and protocols is expansive. Widespread
and pervasive elements of treaty law can with time become customary law, binding
on all states, regardless of whether or not they are party to the treaty in
question.
3.89
The Australian Government should, as an urgent priority, pursue the
development of international agreements to standardise cruising vessel safety
equipment and procedures, and in particular:
n The installation and
real-time monitoring of CCTV;
n The installation of 'man-overboard'
alarm systems to alert on-board security to passengers going overboard;
n The adoption of
reporting protocols analogous to those in the Kerry Act (see Chapter 5);
and
n A Responsible Service
of Alcohol code.
Recommendation 2 |
|
3.90
|
The Committee recommends that the Australian Government
dramatically increase its efforts to achieve greater cruise passenger safety
and crime prevention strategies within the International Maritime
Organisation and other organisations as appropriate, including pursuing
cooperative agreement for the following urgent priorities:
n The
installation and real-time monitoring of CCTV;
n The
installation of 'man-overboard' alarm systems to alert on-board security to
passengers going overboard;
n The
adoption of reporting protocols analogous to those in the Kerry Act; and
n A
Responsible Service of Alcohol code.
|
3.91
In order to promote the adoption of the most recent IMO guidelines, the
Australian Government must continue to strongly voice its support for them, and
vote in their favour at the IMO Assembly in 2013.
Recommendation 3 |
|
3.92
|
The Committee recommends that the Australian Government vote
in favour of the Guidelines on the preservation and collection of evidence
following an allegation of a serious crime having taken place on board a ship
or following a report of a missing person from a ship, and pastoral and
medical care of persons affected, at the upcoming International Maritime
Organisation Assembly in November 2013.
|