House of Representatives

Timor Gap Treaty (Transitional Arrangements) Bill 2000

Explanatory Memorandum

(Circulated by authority of the Minister for Industry, Science and Resources, Senator the Honourable Nick Minchin)

Notes on individual clauses

Part 1 - Preliminary

Clause 1 - Short title

This clause provides the short title by which the Act may be cited.

Clause 2 - Commencement

Subclause 2(1) provides for commencement of the Act on Royal Assent.

The enforcement of criminal law in the Timor Gap is presently regulated by the Crimes at Sea Act 1979 . That Act will be repealed and replaced by a Bill presently before Parliament, namely, the Crimes at Sea Bill 2000.

Subsections 2(2) and 2(3) provide for separate commencement times for those provisions of the Bill that amend the Crimes at Sea Act 1979 and the Crimes at Sea Bill 2000, respectively. The former changes commence from the transition time at 26 October 1999, the date that the United Nations Transitional Administration in East Timor was established. The latter changes will commence immediately before commencement of the Crimes at Sea Bill 2000. It should be noted that the retrospective amendment of the Crimes at Sea Act 1979 is beneficial only. Sections 6 and 7 of the Bill provide protection against retrospective criminal liability.

Clause 3 - Schedule(s)

This clause makes it clear that any Act specified in the two Schedules is amended or repealed as set out in the relevant Schedule, and the Schedules may also contain other provisions.

Clause 4 - The transition time

This item identifies the date and time it was in Australia when, in New York, the United Nations Security Council adopted Resolution 1272 (1999) which established the United Nations Transitional Administration in East Timor and gave it responsibility for the administration of East Timor.

Clause 5 - Validity of things done by the Ministerial Council and the Joint Authority

Subclause 5(1) refers to actions by the Ministerial Council (consisting of designated Australian and Indonesian Ministers) or the Joint Authority (officials appointed by the two countries to administer the Treaty arrangements) after the transition time and prior to the Exchange of Notes between the United Nations Transitional Administration in East Timor and Australia. This subclause ensures that actions taken by the Ministerial Council and the Joint Authority will remain valid even though the United Nations Transitional Administration in East Timor and Australia are now taken to be the Treaty partners, provided such actions were in other respects valid.

Subclause 5(2) provides definitions of Joint Authority, Ministerial Council Treaty and UNTAET.

Clauses 6 and 7 - Protection against retrospective criminal liability and Preservation of immunity from prosecution

Generally, clause 6 ensures that the retrospectivity of the amendments contained in the Bill is only beneficial, and that, in particular, there will be no retrospective criminal liability. Further, clause 7 preserves the immunity from prosecution in certain circumstances as specified in subsection 9A(3) of the Crimes at Sea Act 1979 .

Clause 6 deems that an act will not now constitute a criminal offence if that act would not have constituted an offence under a provision of the legislation amended by this Bill, as in force immediately prior to the transition time (see clause 4).

Clause 7 confers immunity from criminal prosecution in relation to acts committed in Area A of the Zone of Cooperation on Indonesian or East Timorese nationals or permanent residents who are not also Australian nationals, if prosecution of that person could not have been instituted with respect to that act under section 9A(3) of the Crimes at Sea Act 1979 ,as in force immediately prior to the transition time (see clause 4).

Part 2 - Schedule 1 - Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990

Item 1 - Title

This item amends the long title of the Act so that it reads: An Act relating to the Treaty on the Zone of Cooperation in the Timor Gap.

Item 2 - Section 1

This item amends the short title of the Act so that it reads: the Petroleum (Timor Gap Zone of Cooperation) Act 1990.

Item 3 - Subsection 5(1) (at the end of the definition of Treaty )

This item amends the definition of Treaty so that it reads:

Treaty means the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, done over the Zone of Cooperation on 11 December 1989, being the Treaty the text of which is set out in Schedule 1, and includes that Treaty

(a)
as amended from time to time; and
(b)
as read with the Notes exchanged between Australia and the United Nations Transitional Administration in East Timor on 10 February 2000, the text of which is set out in Schedule 2.

Item 4 - At the end of section 13

This item refers to the fact that, under section 13, the provisions of the Timor Gap Treaty and of the Taxation Code, so far as those provisions affect Australian tax, have the force of law according to their tenor. This item provides that, until the United Nations Transitional Administration in East Timor ceases to administer East Timor, the United Nations Transitional Administration in East Timor is the body politic of East Timor and its Transitional Administrator or authorised person is the competent authority in relation to the Taxation Code. References in the Timor Gap Treaty and the Taxation Code to a resident of a Contracting State are therefore to be read as referring to the territory that the United Nations Transitional Administration in East Timor is currently administering. Thereafter, the body politic, the competent authority and the meaning of a resident are to be identified in the regulations.

Item 5 - Schedule (heading)

This item deletes the current heading of the Schedule that reads: Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia and substitutes Schedule 1- Timor Gap Treaty plus a Note.

Item 6 - At the end of the Act

This item adds to the Act Schedule 2 consisting of the text of the Notes exchanged between Australia and UNTAET. The effect of these Notes is that UNTAET replaces Indonesia as Australia's Treaty partner, including as the other member of the Treaty's Joint Authority.

Under Section 6 of the Act, the Joint Authority is an international organisation to which the International Organisations (Privileges (Immunities) Act 1963 applies. This resolves any ambiguity in interpretation of Section 5 of the latter Act, which sets out requirements for membership of an international organisation that may arise when considering the implications of UNTAET's membership of the Joint Authority.

Part 3 - Schedule 2 - other acts

Crimes at Sea Act 1979

Item 1 - Subsection 3(1) (definition of Area A of the Zone of Cooperation)

This item amends the definition of Area A of the Zone of Cooperation to refer to the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 2 - Subsection 3(1)

This item inserts in subsection 3(1) a definition of East Timor. This definition has two limbs.

The first limb applies to the period for which the territory of East Timor is administered by the United Nations Transitional Administration in East Timor pursuant to United Nations Security Council Resolution 1272 (1999). During this period of transitional administration East Timor, in a geographic sense, will mean the territory referred to in United Nations Security Council Resolution 1272 (1999). When referred to as a body politic East Timor will mean the United Nations Transitional Administration in East Timor which is currently exercising executive and legislative power for the benefit of the people of East Timor.

The second limb will apply to the period after the United Nations Transitional Administration in East Timor ceases and an independent state of East Timor emerges. The correct reference to an independent state of East Timor cannot be anticipated. There is a possibility that the United Nations Transitional Administration in East Timor may be replaced by another United Nations entity in due course. Further, there is a possibility that border adjustments may occur before an independent state of East Timor is formally established. For these reasons, the flexibility to redefine East Timor in regulations will enable domestic legislation to quickly and accurately reflect the position at international law.

Item 3 - Subsection 3(1) (definition of Indonesia )

This item removes the redundant definition of Indonesia from subsection 3(1).

Item 4 - Paragraphs 9A(2)(b) and (c)

This item substitutes East Timor for Indonesia. The effect of this amendment is to refer to nationals and permanent residents of East Timor.

As the situation in East Timor is largely unprecedented, no suitable international law terminology exists to describe the people of East Timor. No specific definition of national of East Timor or permanent resident of East Timor will be included in the Crimes at Sea Act 1979 . It is considered that the ordinary English meaning of the terms national and permanent resident is sufficient to describe persons who reside permanently in the territory of East Timor, who were born in that territory or who have some other connection with the territory and who ordinarily would be regarded as nationals or permanent residents if East Timor were a self governing independent nation. For example, one of the definitions of national in the Macquarie Dictionary (2nd Revision, reprinted 1989 ) is a citizen or subject of a particular nation, entitled to its protection. Further, nation is defined as a body of people associated with a particular territory who are sufficiently conscious of their unity to seek or possess a government peculiarly of their own. At the present time, the United Nations Transitional Administration in East Timor is exercising legislative and executive power in East Timor on behalf of the East Timorese people, but there can be no doubt that East Timor can be considered as a nation in terms of the above definition.

Item 5 - Paragraphs 9A(3)(a) and (b)

This item replaces of Indonesia with in force in East Timor. This means that the other criminal laws for the purposes of Area A of the Zone of Cooperation referred to in provisions of the Crimes at Sea Act 1979 are those criminal laws in force in East Timor.

Item 6 - Paragraph 9A(3)(c)

This item makes the straight substitution of East Timor for Indonesia.

Item 7 - Subsection 9A(6) (definition of petroleum)

This item amends the definition of petroleum so that it reads: petroleum has the same meaning as in the Treaty set out in the Schedule 1 to the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 8 - Subsection 17A(1)

This item replaces Indonesia with East Timor. This means that East Timorese authorities will be able to exercise the special transit powers contained in section 17A and pursuant to the Timor Gap Treaty.

Item 9 - Subsection 17A(1)

This item replaces a criminal law of Indonesia with a criminal law in force in East Timor. This means that the other criminal laws for the purposes of Area A of the Zone of Cooperation referred to in the Crimes at Sea Act 1979 are those criminal laws in force in East Timor.

Item 10 - Subparagraphs 17A(1)(b)(iii) and (iv)

This item replaces Indonesia with East Timor to refer to the authority of East Timor utilising the transit power in section 17A.

Item 11 - Subsection 17B(1)

This item makes the straight substitution of East Timor for Indonesia.

Item 12 - Paragraph 17B(2)(a)

This item replaces Indonesian authorities with authorities of East Timor to enable East Timorese authorities to enter into arrangements with Australian authorities under section 17B in relation to the enforcement of criminal laws in Area A of the Zone of Cooperation.

Item 13 - Subparagraph 17B(2)(b)(i)

This item replaces Indonesian authorities with authorities of East Timor to enable East Timorese authorities to enter into arrangements with Australian authorities under section 17B in relation to the enforcement of criminal laws in Area A of the Zone of Cooperation.

Item 14 - Subparagraph 17B(2)(c)(i)

This item replaces of Indonesia with in force in East Timor so that the other criminal laws for the purposes of Area A of the Zone of Cooperation referred to in provisions of the Crimes at Sea Act 1979 are those criminal laws in force in East Timor.

Item 15 - Subparagraph 17B(2)(c)(ii)

This item replaces Indonesian authorities with authorities of East Timor to enable East Timorese authorities to enter into arrangements with Australian authorities under section 17B in relation to the enforcement of criminal laws in Area A of the Zone of Cooperation.

Item 16 - Subsection 17B(3)

This item replaces Australian or Indonesian authority with authority of Australia or East Timor.

Item 17 - Application

This item preserves the effect of old section 9A with respect to criminal acts in Area A of the Zone of Cooperation that were committed prior to the transition time (see clause 4) which have not yet come to light. This ensures that the rules to govern the prosecution of an offence before this date will be clear, that is, they will be the pre-amendment rules.

However, the effects of old sections 17A and 17B have not been preserved because:

(a)
it is no longer appropriate to give Indonesia special transit powers in respect of the Timor Gap now that it is no longer a partner to the Timor Gap Treaty; and
(b)
these special powers have not been used since the transition time (see clause 4).

Crimes at Sea Act 2000

Items 18, 19, 20, 21 and 22 - Section 4

These items insert definitions in section 4 for a number of terms used in the Crimes at Sea Act 2000 . The following terms are inserted: Area A of the Zone of Cooperation, East Timor, law of criminal investigation, evidence and procedure, petroleum and police officer. The definition of East Timor used here is the same as the definition inserted into the Crimes at Sea Act 1979 (see item 2).

Item 23 - After Part 3

This item inserts into the Crimes at Sea Act 2000 a new Part 3A Cooperation between Australia and East Timor in the enforcement of criminal law to reflect recent developments in relation to the Timor Gap Treaty. New Part 3A regulates cooperation between Australia and East Timor in relation to criminal offences committed in Area A of the Zone of Cooperation, with the following provisions.

6A Criminal laws applicable in Area A of the Zone of Cooperation

These provisions accord with Australia's obligations under the Timor Gap Treaty with the United Nations Transitional Administration in East Timor and in all material respects replicate provisions that are currently in the Crimes at Sea Act 1979 , as amended by this Bill to reflect the change in Australias treaty partner, that have been in operation since 1991.

6A(1) provides that the substantive criminal law of the Northern Territory applies to a criminal act done in Area A of the Zone of Co-operation that is connected with petroleum exploration or exploitation. The term criminal act is defined in subsection 6A(7). The term Area A of the Zone of Cooperation is defined in section 4 to have the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 . Area A is also shown on the map appended to the Act.

6A(2) qualifies 6A(1) in providing that the substantive criminal law of the Northern Territory does not apply to an act done from a ship or aircraft or an act by a national or permanent resident of East Timor who is not also a national of Australia.

6A(3) is a double jeopardy provision under which a person cannot face proceedings in Australia for a criminal act dealt with under the laws in force in East Timor or in respect of which a competent authority of East Timor has decided not to prosecute.

6A(4) requires the Attorney-General's consent to a prosecution for an offence to which this section applies, but 6A(5) makes it clear that steps preliminary to commencement of proceedings can be taken without consent (eg, arrest, charge, remand, bail).

6A(6) provides that the same arrangements that apply for investigating and prosecuting offences in relation to the co-operative scheme area also apply in relation to offences committed against a law applied by this section. That is, if a State authority investigates or prosecutes the offence, the procedural laws of that State will apply and if a Commonwealth authority investigates the offence or the prosecution is a Commonwealth prosecution, Commonwealth procedural laws will apply. It is appropriate to extend the co-operative scheme arrangements into this area because the enforcement authorities operating in the area will normally be both Commonwealth and State authorities.

6B Transit of persons accused of offences against the laws of East Timor

These provisions facilitate and regulate the transport in custody through Australia of a person arrested for an offence against a criminal law in force in East Timor that applies in Area A of the Zone of Cooperation. For example, where an aircraft or ship transporting such a person stops in Australia, the person may continue to be detained for up to 24 hours without warrant, and then under warrant for an aggregate maximum of 96 hours, or for a further period under a warrant issued by a magistrate and authorised by the Attorney-General. The Attorney-General may direct the release of such a person held under this section at any time.

These provisions accord with Australia's obligations under the Timor Gap Treaty with the United Nations Transitional Administration in East Timor and only apply to persons subject to East Timorese jurisdiction in Area A of the Zone of Cooperation. For example they do not apply to nationals or permanent residents of Australia unless they are also nationals of East Timor.

6C Agreements relating to enforcement of criminal laws in Area A of the Zone of Cooperation

6C(1) allows for the making of arrangements under regulation to give effect to agreements between Australian and East Timor as to the enforcement of the criminal law in Area A of the Zone of Cooperation.

6C(2) gives examples of the kinds of matters to which effect might be given under regulation, including arrangements about the taking of evidence and the apprehension, transport and handing over of alleged offenders.

6C(3) qualifies the regulation making power by providing that the detention of a person can only be authorised until it first becomes practicable to surrender the person to an appropriate authority.

6C(4) provides that any regulations made pursuant to paragraph 6B(2)(c) which allow Australian authorities to apprehend, detain, transport and surrender persons who have allegedly committed offences against a law in force in East Timor in Area A of the Zone of Cooperation, operate to the exclusion of the Extradition Act 1988 .

Item 24 - Subclause 1(1) of Schedule 1 (definition of Area A of the Zone of Cooperation )

This item replaces Australia-Indonesia with Timor Gap to refer to the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 25 - Schedule 2 (heading immediately before item 7)

This item replaces Australia-Indonesia with Timor Gap to refer to the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Customs Act 1901

Item 26 - Subsection 4(1) (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 27 - Subsection 4(1)

This item inserts, among the definitions in the Customs Act, a definition of East Timor, both when referred to in a geographic sense and as a body politic. It also provides that, after the United Nations Transitional Administration in East Timor ceases to administer the territory, the revised definition of East Timor will be as set out in the regulations.

Item 28 - Subsection 4(1) (definition of Indonesia )

This item repeals the now redundant definition of Indonesia.

Item 29 - Subsection 58B(1) (definition of external place )

Subsection 58B stipulates that direct journeys between resource installations in Area A of the Zone of Cooperation and external places are prohibited and that external places do not include Indonesia. This item amends the subsection so that it is East Timor rather than Indonesia that is not considered an external place.

Item 30 - Subsections 58B(2), (3), (4) and (5)

This item substitutes East Timor for Indonesia as one of the places through which persons or goods may pass while in transit (in either direction) between a resource installation in Area A of the Zone of Cooperation and an external place, with the effect that the passage through East Timor will make the transit legal within the meaning of the Customs Act.

Items 31 and 32 - Subsection 131AA(3)

These items together amend this subsection so that it reads: In this section, petroleum operations has the same meaning as in the Treaty set out in Schedule 1 to the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Fringe Benefits Tax Assessment Act 1986

Item 33 - Subsection 67(12)

This item amends this subsection so that it refers to the Petroleum (Timor Gap Zone of Cooperation) Act 1990.

Income Tax Assessment Act 1936

Item 34 - Subsection 6(1) (definition of Timor Gap Treaty )

This item amends this definition so that it reads: Timor Gap treaty means the Treaty defined by subsection 5(1) of the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 35 - Subsection 177B(1)

This item amends this subsection so that it refers to the Petroleum (Timor Gap Zone of Cooperation) Act 1990.

Migration Act 1958

Item 36 - Subsection 5(1) (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Passenger Movement Charge Act 1978

Item 37 - Section 3 (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Passenger Movement Charge Collection Act 1978

Item 38 - Section 3 (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Item 39 - Section 3 (definition of Timor Gap Treaty )

This item redefines the Timor Gap Treaty by referring to the definition in subsection 5(1) of the Petroleum (Timor Gap Zone of Cooperation) Act 1990. In so doing, it eliminates from this section references to the Republic of Indonesia and the Indonesian Province of East Timor .

Petroleum (Submerged Lands) Act 1967

Item 40 - Subsection 5(1) (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Quarantine Act 1908

Item 41 - Subsection 5(1) (definition of Area A of the Zone of Cooperation )

This item amends the definition so that it reads: Area A of the Zone of Cooperation has the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .

Workplace Relations Act 1996

Item 42 - Subsection 5A(1)

This item amends the heading of section 5A so that it reads: Special provision for industrial disputes in the Timor Gap Zone of Cooperation and amends subsection 5A(1) so that it reads: In this section, Area A of the Zone of Cooperation and the Treaty have the same meaning as in the Petroleum (Timor Gap Zone of Cooperation) Act 1990 .


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