Explanatory Memorandum(Circulated by authority of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock MP)
Background to the UNCLOS amendments
In June 1999 the Prime Minister's Coastal Surveillance Task Force made a number of recommendations relating to Australia's coastal surveillance system. In particular it recommended that "comprehensive legislative amendments be introduced to further strengthen maritime investigatory and enforcement powers against both Australian and foreign flag vessels", and in particular utilise to the fullest extent the jurisdiction conferred on Australia in relation to such matters by virtue of UNCLOS.
In order to implement that recommendation, this Bill amends the Migration Act and the Customs Act to extend the circumstances in which migration and customs officers will be able to board ships. In particular, the amendments to the Customs Act will allow customs officers to board ships for the investigation of offences under other Acts as well as under the Customs Act.
The circumstances in which the commander of a Commonwealth ship or aircraft ("the commander") can request to board a ship depend on:
- the nationality of the ship;
- the maritime zone in which the request to board is made;
- whether the ship is sailing toward Australia, or sailing away from Australia; and
- whether an offence is believed to have been committed, or activities in preparation for the committing of an offence are being carried out.
It is a central principle of international law that every country has jurisdiction over a ship that is registered in that country. This means that every country may exercise powers over its "own" ships anywhere in the world, except when the ship is in the territorial sea of another country.
Generally speaking, the laws of the flag state apply in relation to ships, and except in certain circumstances, only the flag state can exercise jurisdiction in relation to ships entitled to fly the flag of that state. However it is also recognised in UNCLOS that there are circumstances where another country may interfere with that sovereignty. Such circumstances relate to the conduct of a foreign registered ship in the territorial sea of another country and to a lesser extent in another country's contiguous zone or exclusive economic zone. In very limited circumstances another country may also interfere with the foreign ship's sovereignty on the high seas (see below for a description of those zones and the particular circumstances in which a ship may be boarded in those zones).
Two or more countries may also enter into an agreement or arrangement that allows each of those countries to exercise jurisdiction over ships registered in the other country.
Article 110 of UNCLOS provides that a warship or other duly authorised ship clearly marked and identifiable as being on government service which encounters on the high seas a foreign ship is not justified in boarding it unless there is a reasonable ground for suspecting that the ship is without nationality.
Further, Article 92 of UNCLOS provides that ships shall sail under the flag of one State only and that a ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. That article goes on to provide that a ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
The fact that a ship is without nationality does not mean that any State is entitled to assert jurisdiction over the ship or the people on board it. It does, however, mean that the protection of a State against interference with the ship cannot be invoked.
As mentioned above, UNCLOS recognises the existence of certain maritime zones in which countries may legitimately exercise jurisdiction and control. These are described below.
Internal waters are those areas on the landward side of the baselines that define the territorial sea of a country. Internal waters are part of the territory of a country, and the country has complete jurisdiction and control in relation to them.
Article 3 of UNCLOS provides that "every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention." States have "sovereignty" over the territorial sea, its bed and subsoil and the airspace above it, subject to the general rules of international law and other rules set out in UNCLOS relating to matters such as innocent passage through territorial seas by foreign vessels.
The territorial sea is defined for the purposes of the Migration Act and the Customs Act, in relation to Australia, by reference to the Seas and Submerged Lands Act 1973 . The Commonwealth has proclaimed a territorial sea of 12 nautical miles.
The territorial sea of a country does not include its internal waters. Hence many of the amendments to the Migration Act and the Customs Act refer to area on the landward side of the outer edge of Australia's territorial sea (so that the powers can be exercised in Australia's internal waters).
This is a declared zone of sea contiguous to, but beyond the territorial sea in which the Coastal state has certain enforcement powers. Article 33(2) of UNCLOS provides that "the contiguous zone" may not extend beyond 24 nautical miles from seaward of the territorial sea baselines.
This term is defined for the purpose of the Customs Act only as none of the amendments to the Migration Act refer to the EEZ.
Under Article 55 of UNCLOS "the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States governed by the relevant provisions of this Convention."
Further, Article 57 of UNCLOS provides that the exclusive economic zone shall not extend beyond 200 nautical miles seaward from the territorial sea baselines.
In relation to the territorial sea UNCLOS provides that ships of all countries enjoy the right of innocent passage through that zone (Article 17).
Further, Article 21 of UNCLOS provides that a coastal State may adopt laws and regulations relating to innocent passage through the territorial sea in respect of a number of matters. These matters include:
- the conservation of the living resources of the sea;
- the prevention of infringement of the fisheries laws and regulations of the coastal State;
- the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; and
- the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
Article 27 of UNCLOS provides:
The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
- if the consequences of the crime extend to the coastal State;
- if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
- if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
- if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
The amendments to the Migration Act will allow a commander to request to board a ship in the territorial sea for the purposes of the Migration Act.
The amendments to the Customs Act will allow a commander to request to board a ship in the territorial sea for the purposes of the Customs Act as well as other Acts. Those other Acts will be prescribed in the Customs Regulations 1926 (the Customs Regulations), and only Acts which deal with subject matters in relation to which UNCLOS enables the exercise of jurisdiction will be prescribed (these will be referred to as "Acts enforceable in the territorial sea").
Article 33 of UNCLOS provides that a coastal State (Australia) may exercise the control in the contiguous zone necessary to:
- prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and
- punish infringement of the above laws and regulations committed within its territory or territorial sea.
The amendments to the Migration Act will allow a commander to request to board a ship in the contiguous zone for the purposes of identifying the ship, or where the commander reasonably suspects that the ship is, will be or has been involved in a contravention, or attempted contravention in Australia of the Migration Act.
The amendments to the Customs Act will allow a commander to request to board a ship in the contiguous zone for the purposes of identifying the ship, or where the commander reasonably suspects that the ship is, will be or has been involved in a contravention, or attempted contravention in Australia of the Customs Act or another Act. Those other Acts will be prescribed in the Customs Regulations, and only Acts which are consistent with these provisions of UNCLOS will be prescribed (these will be referred to as "Acts enforceable in the contiguous zone").
It will be seen that contiguous zone jurisdiction differs according to whether or not there has been a contravention of Australian law in Australia or in the territorial sea. If a ship entered the contiguous zone in circumstances where it was suspected that an offence was about to be committed, Australia would have jurisdiction to exercise the control necessary to prevent the contravention occurring. In the case of an attempted importation of drugs, for example, this control might extend to seizing and disposing of the drugs. However, there would be no jurisdiction to arrest or charge the persons involved with attempting to commit an offence against Australian law, since no offence would have occurred with Australia's territory or territorial sea.
However, if there has been a contravention of customs, fiscal, immigration or sanitary law, and the ship is leaving Australia after having been used in the contravention, there is jurisdiction to arrest the persons on board, since the coastal state may exercise the control necessary to punish infringements of customs, fiscal, sanitary and immigration laws which have occurred within its territory or territorial sea.
Article 56 of UNCLOS provides in part that in the EEZ, the coastal State has: "(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living"
The amendments to the Customs Act will allow a commander to request to board a ship in the EEZ if the commander reasonably suspects that the master's ship is, will be or has been involved in a contravention or attempted contravention in the EEZ of certain Acts. These Acts will be prescribed in the Customs Regulations.
Coastal states are able to make laws dealing with topics relating to exploration and exploiting of living and non living natural resources, marine scientific research and the protection and preservation of the marine environment and have jurisdiction, under UNCLOS, to enforce those laws in the EEZ. An example of a relevant law is the Fisheries Management Act 1991 . These laws in question will be referred to as "Acts enforceable in the EEZ".