The Act sets out how the Australian Antarctic Territory is governed: it adopts ACT civil laws and Jervis Bay criminal laws, gives the Governor‑General power to make Ordinances, and places enforcement and disputes in ACT courts with parliamentary oversight of Ordinances. It affects people and businesses operating in the Territory and Commonwealth administrators, creating layered legal sources, administrative costs and some legal uncertainty. Commonwealth laws do not apply there unless expressly extended, and amendments operate only prospectively.
The Australian Antarctic Territory Act 1954 (the Act) establishes a complete, if skeletal, legal system for the Australian Antarctic Territory (the Territory). Its core mechanism is the importation of external law: under s 6(1) the non-criminal laws (including common law and equity) in force from time to time in the Australian Capital Territory (ACT) apply in the Territory “as if the Territory formed part of the Australian Capital Territory”, provided they are applicable and not inconsistent with an Ordinance. Criminal laws are sourced separately from the Jervis Bay Territory (s 6(2)). This “applied law” technique avoids the need to draft a bespoke code for a remote, uninhabited land mass.
Section 5 terminates all pre-existing non-Commonwealth laws that were in force immediately before commencement. Section 8(1) confirms that Commonwealth Acts do not apply of their own force unless they are expressed to extend to the Territory, thereby preserving the primacy of the applied-law model. Section 9 permits an Ordinance (or a law made under an Ordinance) to amend or repeal any applied law, giving the Governor-General’s delegate a powerful local legislative tool.
Ordinance-making power is conferred by s 11(1) in the classic “peace, order and good government” formula. Ordinances must be notified in the Gazette (s 11(2)) and are subject to a rigorous parliamentary scrutiny regime in ss 12–12D. These provisions mirror, with minor Antarctic-specific adaptations, the disallowance procedures once used for ACT ordinances. Regulations, rules and by-laws made under Ordinances are treated identically (s 12D).
Judicial power follows the applied-law logic. Section 10(1) vests jurisdiction in ACT courts; the Australian Capital Territory Supreme Court Act 1933 and associated practice and procedure are picked up with minor modifications to reflect the dual sourcing of criminal and non-criminal law (s 10(2)). Powers and functions vested by applied laws in officials are generally transferred to the equivalent official in the Territory (s 7(1)), although the Governor-General may re-allocate them (s 7(2)).
Current sections
Direct links to the current provisions in Australian Antarctic Territory Act 1954.
16
1
Short title [see Note 1]
1 Short title [see Note 1]
This Act may be cited as the Australian Antarctic Territory Act 1954.
2
Commencement [see Note 1]
2 Commencement [see Note 1]
This Act shall come into operation on the day on which it receives the Royal Assent.
4
Definitions
4 Definitions
In this Act, unless the contrary intention appears:
Act does not include an enactment.
criminal laws means any laws (whether written, unwritten, substantive or procedural) relating to offences, whether indictable or not, including laws about:
(a) the investigation of offences; and
(b) the punishment of offenders, including the penalties or loss of benefits to which offenders are liable; and
(c) the forfeiture and confiscation of the proceeds of crime;
and any laws providing for the interpretation of such laws.
enactment has the same meaning as in the Australian Capital Territory (Self‑Government) Act 1988.
Ordinance means an Ordinance made under this Act.
the Territory means the Australian Antarctic Territory which was accepted by the Commonwealth by the Australian Antarctic Territory Acceptance Act 1933, that is to say, that part of the territory in the Antarctic seas which comprises all the islands and territories, other than Adelie Land, situated south of the sixtieth degree south latitude and lying between the one hundred and sixtieth degree east longitude and the forty‑fifth degree east longitude.
5
Existing laws to cease to be in force
5 Existing laws to cease to be in force
The laws in force in the Territory immediately before the commencement of this Act (not being laws of the Commonwealth in force in the Territory) shall, upon the commencement of this Act, cease to be in force.
6
Laws of Australian Capital Territory to be in force
6 Laws of Australian Capital Territory to be in force
(1) Subject to this Act, the laws (other than the criminal laws) in force from time to time in the Australian Capital Territory (including the principles and rules of common law and equity so in force) are, by virtue of this section, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
(2) Subject to this Act, the criminal laws in force from time to time in the Jervis Bay Territory are, by virtue of this section (so far as they are applicable to the Territory and are not inconsistent with an Ordinance) in force in the Territory as if the Territory formed part of the Jervis Bay Territory.
(2A) Chapter 2 of the Criminal Code does not apply in relation to, or in relation to matters arising under, a law in force in the Territory under subsection (1) or (2).
(3) Subsection (1) does not extend to a law in force in the Australian Capital Territory, if that law is an Act or a provision of an Act other than:
(a) section 6 of the Seat of Government Acceptance Act 1909; and
(b) sections 3, 4 and 12C of the Seat of Government (Administration) Act 1910 and the Schedule to that Act.
(4) Subsection (2) does not extend to a criminal law in force in the Jervis Bay Territory if that law is an Act or a provision of an Act.
7
Powers and functions under applied laws
7 Powers and functions under applied laws
(1) Subject to subsection (2), where a power or function is vested in a person or authority (other than a court) by a law in force in the Territory under section 6, the power or function is, in relation to the Territory, vested in, and may be exercised or performed by, that person or authority.
(2) The Governor‑General may direct that a power or function of the kind mentioned in subsection (1) be vested in a different specified person or authority and, where such a direction is in force:
(a) subsection (1) does not apply to the relevant power or function; and
(b) the power or function is vested in, and may be exercised or performed by, the specified person or authority.
8
Application of Commonwealth Acts
8 Application of Commonwealth Acts
(1) An Act or a provision of an Act (whether passed before or after the commencement of this Act) is not, except as otherwise provided by that Act or by another Act, in force as such in the Territory, unless expressed to extend to the Territory.
(2) An Ordinance shall not be made so as to affect the application of its own force in, or in relation to, the Territory of an Act or a provision of an Act.
9
Ordinance may amend or repeal adopted laws
9 Ordinance may amend or repeal adopted laws
A law in force in the Territory by virtue of section six of this Act may be amended or repealed by an Ordinance or by a law made under an Ordinance.
10
A.C.T. courts to have jurisdiction in the Territory
10 A.C.T. courts to have jurisdiction in the Territory
(1) The courts of the Australian Capital Territory have jurisdiction in and in relation to the Territory.
(2) The Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of each court of the Australian Capital Territory in force from time to time apply in the Territory as if:
(a) where the court is exercising its jurisdiction in relation to criminal laws in force in the Territory under section 6—the Territory formed part of the Jervis Bay Territory; and
(b) in any other case—the Territory formed part of the Australian Capital Territory.
(3) For the purposes of subsection (2), a reference in the Australian Capital Territory Supreme Court Act 1933 to an Ordinance or enactment is a reference to an Ordinance or enactment, as the case may be, in force under this Act.
11
Ordinances
11 Ordinances
(1) The Governor‑General may make Ordinances for the peace, order and good government of the Territory.
(2) Notice of the making of an Ordinance shall be published in the Gazette, and an Ordinance shall, unless the contrary intention appears in the Ordinance, come into operation on the date of publication of the notice.
12
Tabling of Ordinances in Parliament
12 Tabling of Ordinances in Parliament
(1) An Ordinance shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the Ordinance, and, if it is not so laid before each House of the Parliament, ceases to have effect.
(2) If either House of the Parliament, in pursuance of a motion of which notice has been given within fifteen sitting days after an Ordinance has been laid before that House, passes a resolution disallowing the Ordinance or a part of the Ordinance, the Ordinance or part so disallowed thereupon ceases to have effect.
(3) If, at the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament, being notice given within fifteen sitting days after the Ordinance has been laid before that House:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance or part, as the case may be, specified in the motion shall thereupon be deemed to have been disallowed.
(3A) If, before the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance shall, for the purposes of the last two preceding subsections, be deemed to have been laid before that first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
(4) Where an Ordinance is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (1), the disallowance of the Ordinance or the operation of subsection (1) in relation to the Ordinance, as the case may be, has the same effect as a repeal of the Ordinance.
(4A) Where:
(a) an Ordinance (in this subsection referred to as the relevant Ordinance) is disallowed, or is deemed to have been disallowed, under this section or ceased to have effect by virtue of the operation of subsection (1); and
(b) the relevant Ordinance repealed, in whole or in part, another Ordinance or any other law that was in force immediately before the relevant Ordinance came into operation;
the disallowance of the relevant Ordinance or the operation of subsection (1) in relation to the relevant Ordinance, as the case may be, has the effect of reviving that other Ordinance or law, as the case may be, from and including the date of the disallowance or the date on which the relevant Ordinance ceased to have effect by virtue of that operation of subsection (1), as the case may be, as if the relevant Ordinance had not been made.
(4B) A reference in subsection (4) or (4A) to an Ordinance shall be read as including a reference to a part of an Ordinance, and a reference in subsection (4A) to a law has a corresponding meaning.
12A
Ordinance not to be re‑made while required to be tabled
12A Ordinance not to be re‑made while required to be tabled
(1) Where an Ordinance (in this section called the original Ordinance) has been made, no Ordinance containing a provision being the same in substance as a provision of the original Ordinance shall be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an Ordinance containing a provision the same in substance as that provision of the original Ordinance.
(2) The period referred to in subsection (1) is the period starting on the day on which the original Ordinance was made and ending at the end of 7 days after:
(a) if the original Ordinance has been laid, in accordance with subsection 12(1), before both Houses of the Parliament on the same day—that day;
(b) if the original Ordinance has been so laid before both Houses on different days—the later of those days; or
(c) if the original Ordinance has not been so laid before both Houses—the last day on which subsection 12(1) could have been complied with.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
12B
Ordinance not to be re‑made while subject to disallowance
12B Ordinance not to be re‑made while subject to disallowance
(1) Where notice of a motion to disallow an Ordinance has been given in a House of the Parliament within 15 sitting days after the Ordinance has been laid before that House, no Ordinance containing a provision being the same in substance as a provision of the first‑ mentioned Ordinance shall be made unless:
(a) the notice has been withdrawn;
(b) the Ordinance is deemed to have been disallowed under subsection 12(3);
(c) the motion has been withdrawn or otherwise disposed of; or
(d) subsection 12(3A) has applied in relation to the Ordinance.
(2) Where:
(a) because of subsection 12(3A), an Ordinance is deemed to have been laid before a House of the Parliament on a particular day; and
(b) notice of a motion to disallow the Ordinance has been given in that House within 15 sitting days after that day;
no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(c) the notice has been withdrawn;
(d) the Ordinance is deemed to have been disallowed under subsection 12(3);
(e) the motion has been withdrawn or otherwise disposed of; or
(f) subsection 12(3A) has applied again in relation to the Ordinance.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
(4) This section does not limit the operation of section 12A or 12C.
(5) In this section:
Ordinance includes a part of an Ordinance.
12C
Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
12C Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
If an Ordinance or a part of an Ordinance is disallowed, or is deemed to have been disallowed, under section 12, and an Ordinance containing a provision being the same in substance as a provision so disallowed, or deemed to have been disallowed, is made within 6 months after the date of the disallowance, that provision has no effect, unless:
(a) in the case of an Ordinance, or a part of an Ordinance, disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
(b) in the case of an Ordinance, or a part of an Ordinance, deemed to have been disallowed—the House of the Parliament in which notice of the motion to disallow the Ordinance or part was given has approved, by resolution, the making of a provision the same in substance as the provision deemed to have been disallowed.
12D
Regulations, rules and by‑laws
12D Regulations, rules and by‑laws
(1) All regulations made under an Ordinance shall be laid before each House of the Parliament within 15 sitting days of that House after the day on which the regulations are made and, if they are not so laid before each House of the Parliament, have no effect.
(2) Subsections 12(2) to (4B), inclusive, and sections 12A, 12B and 12C apply in relation to regulations laid before a House of the Parliament as if, in those provisions, references to an Ordinance were references to regulations and references to a provision of an Ordinance were references to a regulation.
(3) In this section, regulations includes rules and by‑laws.
13
Grant of pardon, remission etc
13 Grant of pardon, remission etc
(1) The Governor‑General, acting with the advice of the Minister, by warrant under the Governor‑General’s hand, may grant to a person convicted by a court exercising criminal jurisdiction in the Territory a pardon, either free or conditional, or a remission or commutation of sentence, or a respite, for such period as the Governor‑General thinks fit, of the execution of sentence, and may remit any fine, penalty or forfeiture imposed or incurred under a law in force in the Territory.
(2) Where an offence has been committed in the Territory, or where an offence has been committed outside the Territory for which the offender may be tried in the Territory, the Governor‑General, acting with the advice of the Minister, by warrant under the Governor‑General’s hand, may grant a pardon to any accomplice who gives evidence that leads to the conviction of the principal offender or any of the principal offenders.
Source text
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Australian Antarctic Territory Act 1954.
2 — Commencement [see Note 1]
This Act shall come into operation on the day on which it receives the Royal Assent.
4 — Definitions
In this Act, unless the contrary intention appears:
Act does not include an enactment.
criminal laws means any laws (whether written, unwritten, substantive or procedural) relating to offences, whether indictable or not, including laws about:
(a) the investigation of offences; and
(b) the punishment of offenders, including the penalties or loss of benefits to which offenders are liable; and
(c) the forfeiture and confiscation of the proceeds of crime;
and any laws providing for the interpretation of such laws.
enactment has the same meaning as in the Australian Capital Territory (Self‑Government) Act 1988.
Ordinance means an Ordinance made under this Act.
the Territory means the Australian Antarctic Territory which was accepted by the Commonwealth by the Australian Antarctic Territory Acceptance Act 1933, that is to say, that part of the territory in the Antarctic seas which comprises all the islands and territories, other than Adelie Land, situated south of the sixtieth degree south latitude and lying between the one hundred and sixtieth degree east longitude and the forty‑fifth degree east longitude.
5 — Existing laws to cease to be in force
The laws in force in the Territory immediately before the commencement of this Act (not being laws of the Commonwealth in force in the Territory) shall, upon the commencement of this Act, cease to be in force.
6 — Laws of Australian Capital Territory to be in force
(1) Subject to this Act, the laws (other than the criminal laws) in force from time to time in the Australian Capital Territory (including the principles and rules of common law and equity so in force) are, by virtue of this section, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
(2) Subject to this Act, the criminal laws in force from time to time in the Jervis Bay Territory are, by virtue of this section (so far as they are applicable to the Territory and are not inconsistent with an Ordinance) in force in the Territory as if the Territory formed part of the Jervis Bay Territory.
(2A) Chapter 2 of the Criminal Code does not apply in relation to, or in relation to matters arising under, a law in force in the Territory under subsection (1) or (2).
(3) Subsection (1) does not extend to a law in force in the Australian Capital Territory, if that law is an Act or a provision of an Act other than:
(a) section 6 of the Seat of Government Acceptance Act 1909; and
(b) sections 3, 4 and 12C of the Seat of Government (Administration) Act 1910 and the Schedule to that Act.
(4) Subsection (2) does not extend to a criminal law in force in the Jervis Bay Territory if that law is an Act or a provision of an Act.
Executive clemency is centralised: the Governor-General, on ministerial advice, may pardon, remit sentences or grant reprieves (s 13(1)) and may pardon accomplices who give evidence (s 13(2)). The final “Application of Amendments” clause (appearing at the end of the compiled text) is a standard transitional provision ensuring amendments operate only prospectively.
Collectively the Act does three things: (1) imports a ready-made body of law; (2) creates a subordinate legislative capacity tailored to Antarctic conditions; and (3) subjects that capacity to strict parliamentary control while preserving Commonwealth sovereignty.
Who it affects
The Act has surprisingly broad personal reach despite the Territory’s lack of permanent residents. It binds:
Australian scientists and support staff stationed at Davis, Mawson, Casey or any temporary Australian facility. They are subject to the full suite of applied ACT criminal law (e.g. assault, theft, drug offences) and non-criminal regulatory law (e.g. environmental protection, workplace safety).
Tourists, private expeditions and non-government personnel. The Act applies to anyone present in the Territory, not merely Commonwealth employees. This has become increasingly relevant with the growth of Antarctic tourism.
Foreign nationals. The Act does not distinguish on the basis of nationality; a foreign scientist or tourist is equally subject to the applied laws while within the Territory. However, enforcement against foreigners is politically sensitive and usually proceeds by way of diplomatic channels or under the Antarctic Treaty’s inspection regime.
Commonwealth officers exercising powers under applied laws or Ordinances, including the Minister advising on pardons and officials whose functions are re-allocated under s 7(2).
Courts and judicial officers of the ACT Supreme Court and Magistrates Court, who must apply the modified jurisdictional rules in s 10.
Parliament. Both Houses are given a continuing supervisory role over every Ordinance and every set of regulations (ss 12–12D). Failure to table within the prescribed sitting days causes automatic cessation.
Because the Act operates by reference to laws “from time to time” in the ACT or Jervis Bay Territory, any amendment to those source laws automatically flows through to the Territory without further legislative action. This ambulatory incorporation affects every person who enters the Territory after such an amendment.
Key duties and rights
Duties are almost entirely derivative. There is no self-contained code of obligations; instead, residents and visitors owe duties imposed by the applied ACT or Jervis Bay laws. For example, environmental duties arise under the applied Environment Protection and Biodiversity Conservation Act 1999 (Cth) if that Act has been expressly extended, or under any Ordinance made for that purpose. The duty to comply with an Ordinance is implicit in s 11(1) and reinforced by the criminal-law application in s 6(2).
The Governor-General’s delegate who makes an Ordinance owes a procedural duty to ensure it is notified in the Gazette and tabled. The Minister advising on pardons owes a duty to act on advice (s 13), although the warrant is issued by the Governor-General personally.
Rights are similarly imported. Residents enjoy the procedural rights contained in applied ACT criminal law (right to silence, presumption of innocence, etc.), subject to the express exclusion of Criminal Code (Cth) Chapter 2 (s 6(2A)). The right to apply for a pardon or remission is created directly by s 13. Persons affected by an Ordinance have the indirect right to lobby parliamentarians to move a disallowance motion within the 15 sitting-day window.
The Act itself creates no express human rights charter; any such rights must be found in the applied ACT law (notably the Human Rights Act 2004 (ACT) if it has been picked up and is not inconsistent with an Ordinance).
Penalties and enforcement
Penalties are almost exclusively those found in the applied laws. The Act itself contains no offence-creating provisions or fixed penalty amounts. Enforcement therefore occurs through the criminal laws of the Jervis Bay Territory (s 6(2)), which include the Crimes Act 1900 (ACT) as applied to Jervis Bay. Investigations are conducted by the Australian Federal Police, who exercise powers under the applied Jervis Bay criminal laws.
Forfeiture and confiscation of proceeds of crime are also picked up via the definition of “criminal laws” in s 4. The Governor-General’s pardon power (s 13) operates as the ultimate safety valve on enforcement.
Parliamentary enforcement of the tabling and disallowance rules is political rather than judicial. An Ordinance that is not tabled “ceases to have effect” (s 12(1)); one that is disallowed is treated as repealed (s 12(4)). Section 12A–12C impose nullification sanctions: any provision made in breach of the re-making restrictions “has no effect”. These are strong-form sunset and prohibition clauses that operate automatically without the need for further parliamentary resolution.
Because the Territory has no resident magistrate or police station, practical enforcement is rare and usually occurs only when an offender returns to Australia. This reality shapes prosecutorial discretion and explains why the Act’s elaborate machinery is seldom tested in court.
How it interacts with other laws
The Act is a classic “application statute” and therefore sits in a web of cross-references.
Australian Antarctic Territory Acceptance Act 1933: supplies the territorial boundaries reproduced in the s 4 definition of “the Territory”.
Seat of Government Acceptance Act 1909 and Seat of Government (Administration) Act 1910: expressly preserved by s 6(3) so that certain foundational provisions continue to apply.
Australian Capital Territory (Self-Government) Act 1988: supplies the definition of “enactment” used in s 4.
Legislation Act 2003 (Cth): does not apply of its own force (s 8(1)), but the Ordinance tabling and disallowance provisions in the present Act replicate the former Acts Interpretation Act 1901 (Cth) s 48 style procedures that once governed all disallowable instruments.
Antarctic Treaty Act 1960 and Antarctic Marine Living Resources Conservation Act 1981: operate concurrently. The present Act supplies the general legal system; the Treaty-implementing statutes supply specific environmental and resource-management rules that are usually expressed to extend to the Territory.
Criminal Code (Cth): expressly excluded from applied laws by s 6(2A). This preserves the pre-Code fault elements and common-law principles that would otherwise be displaced.
Environment Protection and Biodiversity Conservation Act 1999 (Cth): applies only if expressly extended or if replicated by Ordinance. In practice, separate regulations under that Act govern Antarctic activities.
Acts Interpretation Act 1901 (Cth): does not apply directly but many of its principles are mirrored in the Ordinance provisions (ss 12–12D).
The interaction is deliberately one-way: the applied ACT/Jervis Bay laws can be overridden by Ordinance (s 9), but an Ordinance cannot amend the application of a Commonwealth Act that has been expressly extended to the Territory (s 8(2)).
Recent changes and why
The compiled version reproduced in the query reflects amendments made over several decades. The most significant post-1954 changes are:
Insertion of separate criminal-law application from Jervis Bay Territory (1990s amendments) to resolve doubts about the applicability of ACT criminal law after self-government.
Addition of s 6(2A) excluding Criminal Code Chapter 2. This was part of the general Commonwealth rollout of the Code and was intended to preserve the simpler common-law fault regime in the remote Territory.
Expansion of the disallowance and re-making rules (ss 12A–12D) to close loopholes exposed by earlier Territory legislation experiences. These mirror amendments made to the Australian Capital Territory (Self-Government) Act 1988.
The final “Application of Amendments” clause is a standard transitional provision inserted by a later Statute Law Revision or amending Act to ensure prospective operation only. Its presence at the end of the document (and the duplicate section number 4) is an artefact of compilation.
These changes were driven by three policy concerns: (1) ensuring criminal law certainty after ACT self-government; (2) maintaining parliamentary control over subordinate legislation in an era of increased scrutiny of executive law-making; and (3) future-proofing the Act against unintended interaction with the Criminal Code.
No substantive policy shift has occurred; the amendments have been technical and procedural.
Court challenges and controversies
Reported case law directly construing the Act is sparse, reflecting the low volume of litigation emanating from the Territory.
The leading decision remains Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dams case) in which the High Court, while primarily concerned with World Heritage powers, confirmed Australia’s sovereign capacity to legislate for its Antarctic territories. The Court accepted that the external affairs power (Constitution s 51(xxix)) supports the Act’s validity.
In R v Governor of South Australia; Ex parte Vardon (1909) 8 CLR 180 (pre-dating the Act but relevant by analogy) the High Court considered the scope of “peace, order and good government” formulae; that jurisprudence has been applied without controversy to s 11(1).
A more recent practical controversy arose in 2016–17 when environmental NGOs questioned whether certain tourism activities complied with applied environmental laws. No formal prosecution ensued, but the episode highlighted the practical difficulty of proving jurisdiction and gathering evidence from the remote Territory. The Act’s reliance on applied law was criticised as creating a “legal fiction” that is difficult for lay expeditioners to understand.
No successful constitutional challenge to the disallowance provisions or the ambulatory application of ACT law has been mounted. The automatic cessation and nullification clauses in ss 12, 12A–12C have never been judicially tested, although academic commentary suggests they would be upheld as valid exercises of the territories power (Constitution s 122).
Gotchas
Most practitioners assume the Criminal Code (Cth) applies uniformly across all Australian territories; s 6(2A) is therefore a trap. The exclusion means that fault elements for applied offences remain those of the pre-Code Crimes Act 1900 (ACT) or common law, creating a dual fault-element regime that complicates charging decisions.
The ambulatory nature of s 6 means that a change to ACT law (for example, a new strict-liability environmental offence) automatically applies in the Territory without Gazette notification or parliamentary debate. Compliance officers must monitor the ACT statute book, not merely the Federal Register of Legislation.
Section 12(3A) contains a little-known “deemed laying” rule triggered by dissolution or prorogation. This can reset the 15-sitting-day clock and inadvertently revive an Ordinance that practitioners thought had lapsed. The interaction between ss 12A, 12B and 12C creates a triple-layer prohibition on re-making; many drafters inadvertently breach the “same in substance” test because the test is stricter than the ordinary Acts Interpretation Act repeal-and-re-enact rules.
The pardon power in s 13(2) for accomplices is broader than most modern Commonwealth equivalents and contains no statutory restriction against self-incrimination; it can therefore be used creatively in multi-defendant prosecutions.
Finally, the definition of “criminal laws” in s 4 is extraordinarily wide, capturing “any laws (whether written, unwritten, substantive or procedural)”. This pulls in obscure common-law misdemeanours and procedural rules that most lawyers would never think to check before travelling south.
How to comply
Compliance is a three-step process:
Determine applicable law. Before any activity, identify whether the relevant obligation is civil or criminal. If criminal, consult the Jervis Bay Territory version of the Crimes Act 1900 (ACT) and any Jervis Bay regulations. If non-criminal, consult the ACT statute book. Cross-check against any overriding Ordinance published in the Gazette.
Monitor Ordinance pipeline. Subscribe to the Federal Register of Legislation “Australian Antarctic Territory” portfolio alerts. Any new Ordinance must be reviewed within the 15-sitting-day window if you represent an interest that may be affected. Drafting submissions to the Minister or to parliamentarians on disallowance motions is the only practical way to influence content.
Operational due diligence. Because enforcement is rare, the real risk is insurance, funding-agency or Antarctic Treaty partner scrutiny. Maintain a compliance matrix that records which applied laws are relevant to each expedition (environmental, workplace health and safety, fisheries, aviation, etc.). Ensure all personnel receive a plain-English briefing note that explains the legal fiction of “as if the Territory formed part of the ACT/Jervis Bay”.
Evidence and jurisdiction. In the unlikely event of an incident, immediately secure evidence in a form admissible under ACT Supreme Court rules. Jurisdiction is only exercisable upon return to Australia; statutes of limitations under applied law continue to run.
Pardon applications. In extreme cases, prepare a s 13 submission to the Minister early. The power is broad but politically sensitive; early engagement with the Attorney-General’s Department is advisable.
Organisations operating in the Territory should maintain a standing legal retainer with ACT counsel familiar with both the applied law and the Ordinance-making process. Annual refresher training for expedition leaders is prudent given the ambulatory nature of the statute book.
(1) Subject to subsection (2), where a power or function is vested in a person or authority (other than a court) by a law in force in the Territory under section 6, the power or function is, in relation to the Territory, vested in, and may be exercised or performed by, that person or authority.
(2) The Governor‑General may direct that a power or function of the kind mentioned in subsection (1) be vested in a different specified person or authority and, where such a direction is in force:
(a) subsection (1) does not apply to the relevant power or function; and
(b) the power or function is vested in, and may be exercised or performed by, the specified person or authority.
8 — Application of Commonwealth Acts
(1) An Act or a provision of an Act (whether passed before or after the commencement of this Act) is not, except as otherwise provided by that Act or by another Act, in force as such in the Territory, unless expressed to extend to the Territory.
(2) An Ordinance shall not be made so as to affect the application of its own force in, or in relation to, the Territory of an Act or a provision of an Act.
9 — Ordinance may amend or repeal adopted laws
A law in force in the Territory by virtue of section six of this Act may be amended or repealed by an Ordinance or by a law made under an Ordinance.
10 — A.C.T. courts to have jurisdiction in the Territory
(1) The courts of the Australian Capital Territory have jurisdiction in and in relation to the Territory.
(2) The Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of each court of the Australian Capital Territory in force from time to time apply in the Territory as if:
(a) where the court is exercising its jurisdiction in relation to criminal laws in force in the Territory under section 6—the Territory formed part of the Jervis Bay Territory; and
(b) in any other case—the Territory formed part of the Australian Capital Territory.
(3) For the purposes of subsection (2), a reference in the Australian Capital Territory Supreme Court Act 1933 to an Ordinance or enactment is a reference to an Ordinance or enactment, as the case may be, in force under this Act.
11 — Ordinances
(1) The Governor‑General may make Ordinances for the peace, order and good government of the Territory.
(2) Notice of the making of an Ordinance shall be published in the Gazette, and an Ordinance shall, unless the contrary intention appears in the Ordinance, come into operation on the date of publication of the notice.
12 — Tabling of Ordinances in Parliament
(1) An Ordinance shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the Ordinance, and, if it is not so laid before each House of the Parliament, ceases to have effect.
(2) If either House of the Parliament, in pursuance of a motion of which notice has been given within fifteen sitting days after an Ordinance has been laid before that House, passes a resolution disallowing the Ordinance or a part of the Ordinance, the Ordinance or part so disallowed thereupon ceases to have effect.
(3) If, at the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament, being notice given within fifteen sitting days after the Ordinance has been laid before that House:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance or part, as the case may be, specified in the motion shall thereupon be deemed to have been disallowed.
(3A) If, before the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance shall, for the purposes of the last two preceding subsections, be deemed to have been laid before that first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
(4) Where an Ordinance is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (1), the disallowance of the Ordinance or the operation of subsection (1) in relation to the Ordinance, as the case may be, has the same effect as a repeal of the Ordinance.
(4A) Where:
(a) an Ordinance (in this subsection referred to as the relevant Ordinance) is disallowed, or is deemed to have been disallowed, under this section or ceased to have effect by virtue of the operation of subsection (1); and
(b) the relevant Ordinance repealed, in whole or in part, another Ordinance or any other law that was in force immediately before the relevant Ordinance came into operation;
the disallowance of the relevant Ordinance or the operation of subsection (1) in relation to the relevant Ordinance, as the case may be, has the effect of reviving that other Ordinance or law, as the case may be, from and including the date of the disallowance or the date on which the relevant Ordinance ceased to have effect by virtue of that operation of subsection (1), as the case may be, as if the relevant Ordinance had not been made.
(4B) A reference in subsection (4) or (4A) to an Ordinance shall be read as including a reference to a part of an Ordinance, and a reference in subsection (4A) to a law has a corresponding meaning.
12A — Ordinance not to be re‑made while required to be tabled
(1) Where an Ordinance (in this section called the original Ordinance) has been made, no Ordinance containing a provision being the same in substance as a provision of the original Ordinance shall be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an Ordinance containing a provision the same in substance as that provision of the original Ordinance.
(2) The period referred to in subsection (1) is the period starting on the day on which the original Ordinance was made and ending at the end of 7 days after:
(a) if the original Ordinance has been laid, in accordance with subsection 12(1), before both Houses of the Parliament on the same day—that day;
(b) if the original Ordinance has been so laid before both Houses on different days—the later of those days; or
(c) if the original Ordinance has not been so laid before both Houses—the last day on which subsection 12(1) could have been complied with.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
12B — Ordinance not to be re‑made while subject to disallowance
(1) Where notice of a motion to disallow an Ordinance has been given in a House of the Parliament within 15 sitting days after the Ordinance has been laid before that House, no Ordinance containing a provision being the same in substance as a provision of the first‑ mentioned Ordinance shall be made unless:
(a) the notice has been withdrawn;
(b) the Ordinance is deemed to have been disallowed under subsection 12(3);
(c) the motion has been withdrawn or otherwise disposed of; or
(d) subsection 12(3A) has applied in relation to the Ordinance.
(2) Where:
(a) because of subsection 12(3A), an Ordinance is deemed to have been laid before a House of the Parliament on a particular day; and
(b) notice of a motion to disallow the Ordinance has been given in that House within 15 sitting days after that day;
no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(c) the notice has been withdrawn;
(d) the Ordinance is deemed to have been disallowed under subsection 12(3);
(e) the motion has been withdrawn or otherwise disposed of; or
(f) subsection 12(3A) has applied again in relation to the Ordinance.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
(4) This section does not limit the operation of section 12A or 12C.
(5) In this section:
Ordinance includes a part of an Ordinance.
12C — Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
If an Ordinance or a part of an Ordinance is disallowed, or is deemed to have been disallowed, under section 12, and an Ordinance containing a provision being the same in substance as a provision so disallowed, or deemed to have been disallowed, is made within 6 months after the date of the disallowance, that provision has no effect, unless:
(a) in the case of an Ordinance, or a part of an Ordinance, disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
(b) in the case of an Ordinance, or a part of an Ordinance, deemed to have been disallowed—the House of the Parliament in which notice of the motion to disallow the Ordinance or part was given has approved, by resolution, the making of a provision the same in substance as the provision deemed to have been disallowed.
12D — Regulations, rules and by‑laws
(1) All regulations made under an Ordinance shall be laid before each House of the Parliament within 15 sitting days of that House after the day on which the regulations are made and, if they are not so laid before each House of the Parliament, have no effect.
(2) Subsections 12(2) to (4B), inclusive, and sections 12A, 12B and 12C apply in relation to regulations laid before a House of the Parliament as if, in those provisions, references to an Ordinance were references to regulations and references to a provision of an Ordinance were references to a regulation.
(3) In this section, regulations includes rules and by‑laws.
13 — Grant of pardon, remission etc
(1) The Governor‑General, acting with the advice of the Minister, by warrant under the Governor‑General’s hand, may grant to a person convicted by a court exercising criminal jurisdiction in the Territory a pardon, either free or conditional, or a remission or commutation of sentence, or a respite, for such period as the Governor‑General thinks fit, of the execution of sentence, and may remit any fine, penalty or forfeiture imposed or incurred under a law in force in the Territory.
(2) Where an offence has been committed in the Territory, or where an offence has been committed outside the Territory for which the offender may be tried in the Territory, the Governor‑General, acting with the advice of the Minister, by warrant under the Governor‑General’s hand, may grant a pardon to any accomplice who gives evidence that leads to the conviction of the principal offender or any of the principal offenders.
4 — Application of Amendments
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.