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<< Return to previous page | House of Representatives Standing Committee on Social Policy and Legal Affairs Navigation: Previous Page | Contents | Next Page Appendix F – Government ResponseGovernment response to the recommendations of the NSW Coroner following the inquest into the death of Ms Dianne Brimble The tragic death of Dianne Brimble has caused much sadness and pain for Ms Brimble's family and friends. The Government commends Ms Brimble's family and friends, particularly Mr Mark Brimble, for their patience through the many processes arising from her death, including most recently, the Government's careful consideration of the former New South Wales (NSW) Coroner's findings. On 3 December 2010, the former NSW Senior Deputy State Coroner, Magistrate Jacqueline M. Milledge, made the "Brimble" recommendations (the recommendations) following the inquest into the death ofMs Dianne Brimble on board the P&O cruise ship ' Pacific Sky' on 24 September 2002. The Government has accepted recommendations 1, 3, 7, 8 and 9 of the coroner, (either wholly or in part). The Government will refer some of the issues raised by the Coroner to the House Standing Committee on Social Policy and Legal Affairs. There are a number of areas covered by the Coroner's recommendations in which improvements have been made to existing practices following the death of Ms Brimble or there are already arrangements in place which largely address the issues raised by the Coroner. The Government has referred to these arrangements where relevant. The recommendations cover a broad range of matters, including police and coronial jurisdictions, the United States (US) Kerry Act, federal police presence on ships, drug scanning and drug detection dogs at ports, and coronial best practice. These recommendations have been considered by the Commonwealth Government departments and agencies with responsibility for and expertise in matters relating to the maritime sector including the regulation of Australian-flagged ships, maritime safety, the control of Australia's borders, crime prevention, reporting of crime and the investigation of crimes that occur on ships within Australia's jurisdiction. The responsibility for responding to the recommendations has been shared across a number of departments and agencies. The departments and agencies involved included the: Australia's maritime regulatory framework regarding maritime safety and the regulation of Australian flagged ships, is comprised of policies, requirements and guidelines relating to ship construction standards, ship survey and safety, crewing,
seafarers' qualifications and welfare, occupational health and safety, carriage and handling of cargoes, passengers and marine pollution prevention. Enforceable requirements are legislated through Marine Orders under the Navigation Act 1912
(Cth). ACBPS chairs the National Sea Passengers Facilitation Committee (NSPFC), a joint
government and industry forum established to discuss and develop collaborative
approaches to managing cruise vessel issues. Ms Milledge's recommendations were
noted at the NSPFC meeting in April 2011. AMSA is the national maritime regulator and is responsible for developing and
implementing national and international maritime safety standards, including
monitoring compliance with operational standards for ships, administering training
standards, and providing search and rescue services in cooperation with the States and
Territories. AMSA works closely with the National Marine Safety Committee to In relation to the reporting of crime and the investigation of crimes at sea, including
on cruise ships, Australia's domestic legislation applies to the full extent possible
under international law. The Commonwealth is limited in its criminal jurisdiction,
however, by section 51 ofthe Australian Constitution. The Crimes at Sea Act 2000 (Cth) (Crimes at Sea Act) was enacted partly in response
to the findings of a Coastal Surveillance Task Force established on 12 April1999,
chaired by the then Secretary of the Department of the Prime Minister and Cabinet,
Mr Max Moore-Wilton, in the context of people smuggling. The Task Force reported
in June 1999 that ' [c]urrent maritime enforcement legislation does not implement
fully the powers available under international law' [1] and recommended that
'comprehensive legislative amendments be introduced to further strengthen maritime
investigatory and enforcement powers against both Australian and foreign flag
vessels'.[2] The Second Reading Speech to the Bill states, 'The new crimes at sea scheme will be
simpler to understand and apply, and will result in more effective law enforcement. '[3]
Under the Crimes at Sea Act, the Commonwealth and the States have agreed to a
cooperative scheme to apply the criminal law of the States extraterritorially in the areas adjacent to the coast of Australia. Under the scheme, the criminal law of each Beyond 200 nautical miles from the baseline for the State or the outer limit of the continental shelf, the substantive criminal law of the Jervis Bay Territory applies at In terms of enforcement, the AFP has primary responsibility for investigating Commonwealth offences that are not applied State offences[5] throughout Australia, including in the adjacent maritime areas. It also has jurisdiction to investigate applied State offences and State offences with a federal aspect. [6] State police generally have responsibility for the enforcement of State criminal law, whether 'pure' State law or applied under Commonwealth law, including the Crimes at Sea Act. This comprises the majority of the criminal law applicable in Australia and its waters. Under the Crimes at Sea Act, before prosecuting offences that occurred on a foreign flagged ship or outside the adjacent area (but where there is a relevant nexus with Australia, as listed above), the relevant State or Federal authorities must obtain the consent of the Attorney-General before a prosecution can proceed. [7] In providing this consent, the Attorney-General must take into account the views of the flag state. [8] Some crimes committed at sea, including causing death or injury to a person, are also covered by the Crimes (Ships and Fixed Platforms) Act 1992 (Cth) which implements the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.[9] Proceedings under this Act may be brought if the ship was on or scheduled to engage in an international voyage or in the territorial sea or internal waters of a foreign country, and the alleged offence had: Before prosecuting such an offence, the consent of the Attorney-General or authorised person is required.[11]
Agreed in part
In relation to the specific issues identified, the Government's response is as follows. (a) Cross-juristictional issues The Government will refer to the Committee consideration of the effectiveness of current arrangements for the investigation and prosecution of alleged offences under the Crimes at Sea Act and the Intergovernmental Agreement. The Government notes that in relation to the police and coronial investigation into Ms Brimble's death, New So-uth Wales (NSW) had, and continues to have, primary jurisdiction by virtue of the Crimes at Sea Act and the Coroners Act 2009 (NSW). The inquest report of the Coroner does not identify any specific deficiencies in existing protocols and arrangements for determining cross-jurisdictional issues in response to the incident. Accordingly the Government is of the view that the current arrangements are appropriate. However, there is value in the Committee considering whether these arrangements can be improved. The Intergovernmental Agreement made under clause 5 of Schedule 1 of the Crimes at Sea Act sets out the geographical jurisdiction of State, Territory and Federal agencies for the investigation and prosecution of crimes at sea. This includes the allocation of primary investigative responsibility and mechanisms to resolve concurrent jurisdiction. Due to Australia's federal structure and the operation of international law, however, Commonwealth, State, Territory and foreign police jurisdictions are not mutually exclusive: any incident at sea may involve more than one jurisdiction concurrently.
While consideration of criminal jurisdiction for crimes at sea may in some cases be
complex, this complexity is dealt with at an operational level through long-established (b) overlap of coronial and police jurisdictions The Government will refer to the Committee consideration of cross jurisdiction issues that face the States, Territories and the Commonwealth, including the overlap of
various Coronia! Jurisdictions. The Government notes that there are existing cooperative arrangements in relation to
the overlap of coronia! and police jurisdictions, however it is of the view that there is
value in further examination of these arrangements. Coronial inquiries The laws governing which deaths are reportable to, and examinable by, a coroner are similar throughout Australia. [12] While extraterritorial jurisdiction is conferred on all State and Territory coroners in relation to people normally resident within that State or Territory (irrespective of where they died), some jurisdictions also confer extraterritorial jurisdiction where a person was on a journey to or from the State or Territory. [13] It is understood that practice among the coronial jurisdictions is highly cooperative. For instance, in practice, the findings of an inquest in one jurisdiction may be adopted
by another jurisdiction rather than a second inquest being undertaken. There is also
assisting legislation in all jurisdictions, for instance enabling States and Territories to
provide investigative assistance to each other.[14] The Government also notes that in the matter ofMs Brimble's death, the NSW State Coroner's jurisdiction was clear under the Coroners Act 2009 (NSW). Police investigations The Intergovernmental Agreement under the Crimes At Sea Act and the National Protocol for Receiving Reports of Crimes At Sea referred to in the response to recommendation 1 (a) address the overlap between State, Territory and Federal Police Forces. (c) Adoption of the Kerry Act 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. The Government also acknowledges the Coroner's reference to the reforms to safety and security implemented by P&O Cruises Australia and supports the development of similar safety and security measures by other ship operators. The Cruise Vessel Security and Safety Act (US) (the Kerry Act) applies to all passenger vessels authorised to carry at least 250 people that embark or disembark passengers in the United States (US), wherever the vessel is registered. It creates obligations regarding vessel design, equipment, construction, video surveillance, safety information, sexual assault responses, crew access, and log books and reporting. By way of enforcement, it imposes civil and criminal penalties, and the possibility of denial of entry for contravention. Adopting the Kerry Act may be inconsistent or in conflict with Australia's existing international maritime obligations, including international conventions to which Australia is a party. For example, the United Nations Convention on the Law of the Sea (UNCLOS) Article 21 provides that although coastal states can adopt certain laws relating to innocent passage through its territorial sea "such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards". Australia regulates matters similar to those covered by the Kerry Act, although most are limited in their application to Australian flagged vessels, which currently do not include any large passenger vessels. For example, reporting requirements which fulfil
many of the objectives of section 3507(f)(3) of the Kerry Act include: Additionally, AMSA requires and approves training courses which implement
international minimum standards for training and certification of vessel security
personnel, which are equivalent to section 3508(b) ofthe Kerry Act. Regulating the conduct of crew members at sea, including the master of the vessel, by requiring certain responses to incidents, the provision of information to passengers, the maintenance of confidentiality of information, and the regulation of crew member access to passenger cabins is also a matter for the flag state. Under the Kerry Act, certain crimes must be reported to the Federal Bureau oflnvestigations (FBI). In the Australian context, crimes committed on board cruise ships should generally be reported to the State or Territory jurisdiction with a nexus to the incident, that is: If, however, an issue is reported to the wrong jurisdiction, the National Protocol for Receiving Reports of Crimes At Sea ensures that investigations and management of victims, witnesses and offenders (amongst other things) commences immediately. The imposition of ship design or manning requirements as a condition of entry into Australian ports is likely to elicit protest from the flag states of foreign vessels. (d) Competency to be considered in determining ' lead investigator' The Government considers that the current legal framework for determining investigative jurisdiction functions well, in accordance with international and domestic law. The Government is of the view it would be impractical and inappropriate to attempt to assess the level of investigative 'competency' of jurisdictional agencies before determining which agency should take the lead in a particular case. At international law, under Article 91 of the UNCLOS, ships have the nationality of the state whose flag they fly. Under Article 92, a ship is subject to the exclusive jurisdiction of its flag state on the high seas (save for exceptional circumstances
recognised in UNCLOS or other international treaties). Even where a vessel is in the
territorial waters of a foreign state or in a foreign port, the jurisdiction ofthe flag state
of the vessel operates concurrently with the criminal jurisdiction of the coastal or port
state. A state has a positive duty under Article 94 of the UNCLOS to ' effectively
exercise its jurisdiction and control in administrative, technical and social matters
over ships flying its flag', and must assume jurisdiction under its internal (domestic)
law over ships flying its flag and the ship's master, officer and crew in respect of
those same matters. At domestic law, under section 6(4) of the Crimes at Sea Act, before prosecuting an
offence that occurred on a foreign flagged vessel, the relevant State or Federal
authorities must obtain the consent of the Attorney-General before a prosecution can
proceed. In providing this consent, the Attorney-General must take into account the
views of the flag state. (e) Disregarding Flag State status In light of the position at international and domestic law discussed under recommendation 1(d) above, Australia cannot ' disregard' the flag state's jurisdiction. (f) Jurisdiction over offenders for crimes at sea The Government will refer to the Committee consideration of whether improvements could be made in relation to the reporting, investigation and prosecution of alleged crimes committed at sea. The Government notes that the Crimes at Sea Act provides an appropriate legal framework for the prosecution of offenders for crimes at sea. However, the Government is of the view that consideration should be given to whether this framework can be improved in any way. The Crimes at Sea Act establishes the jurisdiction of Australian authorities to prosecute offenders to the fullest extent permissible under international law. Australia has comprehensive jurisdiction over offenders, including foreign nationals, who commit crimes on board Australian or foreign flagged vessels, in both Australian and international waters,. provided those crimes have a connection with Australia. Specifically, the criminal law extends to acts that occur at sea outside Australia by
operation of the Crimes at Sea Act, whereby the substantive criminal law of the Jervis
Bay Territory applies at sea to a criminal act: This covers a similar range of circumstances outside Australia (ie on foreign flagged ships) to the example given by the NSW Coroner of Division 272 of the Criminal Code Act 1995 (child sex offences outside Australia). [18] This Division extends to conduct committed wholly outside Australia if the perpetrator was an Australian citizen, Australian resident, a body corporate incorporated under Australian law, or any other body corporate that carries on its activities principally in Australia. [19]
Not agreed The Government has considered this recommendation and found a number of complex legal, jurisdictional and practical impediments to complying with it. On balance, overcoming these difficulties presents a much greater challenge than the benefit that would be derived from the implementation of this recommendation due to the nature of criminal behaviour on cruise ships. In relation to the maritime environment, Australia has jurisdiction and the AFP or State or Territory Police may take action under the Crimes at Sea Act inside the adjacent area, or outside the adjacent area in relation to a criminal act: There are considerable, and potentially insurmountable, difficulties with legislating for the attachment of an AFP officer to a foreign cruise ship throughout its journey. First, this is likely to exceed the permissible international legal limits on extraterritorial jurisdiction. Secondly, an AFP officer could not exercise any enforcement powers, such as arrest, on a foreign vessel except with the consent of the flag state. Even if Australia were to secure flag state consent, there are issues regarding the applicable law under which the AFP officer would be operating while on the vessel (which would generally be the law ofthe flag state), and potential challenges to an Australian Court's jurisdiction over any resultant prosecution on account of irregular arrest. It is a long held tradition that the master of the vessel has overall responsibility for security on board his or her vessel. The Government is not aware of any precedent where police officers from one sovereign nation are routinely placed on board vessels of a different nation-state to undertake community policing duties. As stated above, few if any cruise ships have Australian flag state status. In relation to Australian flagged vessels, although Australia has jurisdiction, there are practical difficulties in attaching an AFP officer to a domestic cruise ship. Criminal behaviour on cruise ships generally relates to the types of offences that State and Territory police forces deal with. The creation of such a police presence on board cruise vessels would also be extremely resource-intensive.
Agreed in principle
Not agreed Collaboration amongst State and Territory coroners is well developed. For example, coroners regularly meet to discuss issues of a cross-jurisdictional nature and have an established practice of regular liaison and cooperation on operational issues. State and Territory coroners have collaborated in the past in conducting inquests, such as following the Bali Bombings. The Government will give consideration to establishing a federal coronial jurisdiction if a need is identified.
Not agreed The Government is of the view that the current law enforcement arrangements are adequate to address the issues raised in recommendation 5. The AFP and ACBPS will continue to monitor the effectiveness of current arrangements for detecting drugs at Australian ports. Following the tragic death ofMs Brimble in 2002, P&O reported that it introduced drug screening of all passengers[20] The screening includes baggage screening and personal X-rays on embarkation in addition to random drug screens at overseas ports.
It is understood that other companies undertake similar activities. This is consistent with arrangements at other similar private-public places of this nature. Currently all passengers departing Australian ports are required to present their passport and the Outgoing Passenger Card to Customs and Border Protection for immigration and border clearance purposes. Additional checks on passengers and/or crew may be undertaken on an intelligence-led risk basis. Commonwealth law enforcement activities in the maritime context are intelligenceled and risk-based. This ensures that resources are directed to the highest threats to the Australian border. This recommendation, effectively a mass screening approach, is not as effective as Australia's intelligence-led approach to managing border risks. The costs and economic impact of this recommendation outweigh the potential benefit. In the last decade, cruise operators have already directed significant effort to security and risk targeting hundreds of vessels and tens of thousands of passengers to ensure an incident of this nature has not been repeated.
Not agreed The Government is of the view that the current approach to managing border risks is sufficient. As part of increased security measures implemented by P&O, it reports that it currently uses drug detection dogs at the start of all cruises,[21] and it is understood that other companies undertake similar activities. This is consistent with arrangements at other similar private-public places of this nature. As stated in response to recommendation 5, a mass screening approach is not as effective as Australian law enforcement's intelligence-led approach to managing border risks. The ACBPS deploys resources as necessary where a specific risk is identified, and regularly reviews its approach to managing border risks, including risk assessmg sea passengers. The AFP and ACBPS will continue to monitor the effectiveness of current port drug detection arrangements.
Agreed in part Mr Brimble and the International Cruise Victims of Australia would be encouraged to appear as witnesses before the inquiry.
Agreed A number ofthe P& 0 reforms address the recommendations ofMr Brimble and International Cruise Victims Australia, including:
Agreed in principle The Government notes that guidelines for the management of human remains at sea can already be found in the International Medical Guide for Ships (3rd Edition) 2007 (the relevant extract of the Guidelines is at Attachment A), published by the World Health Organization (WHO) in collaboration with the International Labour Organisation (ILO) and the International Maritime Organization (IMO). The guidelines include advice for dealing with the remains of anyone who dies in circumstances that are ' unusual, sudden or unknown, or ifthere is any possibility of criminal intent'. International Medical Guide for Ships3rd edition including the ship's medicine chest Chapter 27 - Death at sea When nothing can be done to save a patient's life. everything should be done to alleviate the patient's suffering and loneliness in the final moments of life. Signs of Death
What to do
Examining a dead body
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