Part 2.7 Geographical jurisdiction
Commonwealth Criminal Code: Guide for practitioners
The provisions in Part 2.7 commenced on 24 May 2001 and differ from the rest of Chapter 2 of the Code in that they do not concern responsibility for offences. Part 2.7 should be a substantial improvement over the previous position under section 3A of the Crimes Act 1914. The position in relation to the geographical reach of all new offences will be much more precise. This is particularly appropriate for Commonwealth offences, many of which are focused on activities which occur either partly or wholly outside Australia.
Part 2.7 provides a range of jurisdictional options.407 From May 24 2001 new offences will fall within one or other of the available options. Provision can also be made to subject offences enacted before that date to the jurisdictional provisions of Part 2.7.408 If the offence only requires a narrow territorial based geographical jurisdiction, then section 14.1 will automatically apply without reference to the issue. However, if it is desired that the offence should reach outside Australia sections 15.1 to 15.4 provide for a selection of options for extended geographical jurisdiction ranging from covering Australian citizens for what they do anywhere in the world (category A); to citizens and residents for what they do anywhere in the world (category B); and finally to anyone anywhere regardless of citizenship or residence (category C) -except where it is not unlawful in the other place - and category D - regardless of whether it is lawful elsewhere).
The purpose of Part 2.7 is to clarify, and to provide in an orderly way for, the geographical application of Commonwealth offences. There are several instances where the geographical reach of Commonwealth offences is not clear, or where general application provisions are not adapted to the purpose of particular offence provisions. Commonwealth offence provisions are usually enacted to give effect to a specific governmental purpose. Depending on that purpose, and considerations of international law, practice and comity, it might be appropriate for an offence to have a broad or narrow application.
Commonwealth law, as expressed in Part 2.7 Geographical Jurisdiction, diverges markedly from both existing and proposed State and territorial jurisdictional provisions. In particular, Part 2.7 in Chapter 2 of the Commonwealth Criminal Code diverges markedly from its counterpart in Part 2.7 of the Model Criminal Code. The MCC provisions and differences between them and their federal counterparts are discussed in MCC, Chapter 4: Damage and Computer Offences and Amendment to Chapter 2: Jurisdiction, Report 2000, 110-116; 217-279.
The provisions envisage the possibility of retrospective application, to offences enacted before May 24 2001: see, ss14(1)(b), and 15.1, 15.2, 15.3 and 15.4, each of which opens with the declaration that the section applies “If a law of the Commonwealth [so] provides”.