The Act and its Schedule introduce a small set of technical concepts that structure offshore criminal jurisdiction and procedure. Define these precisely and track their legal function.

• Cooperative scheme. The body of clauses in Schedule 1 that describe how State substantive criminal law and criminal procedural law operate in adjacent areas, including the intergovernmental agreement mechanism (Sch 1, heading and cl 5). The Act ratifies the scheme to the extent of State competence (s 4).

• Adjacent area, inner adjacent area and outer adjacent area. These spatial categories describe the marine zones in which State substantive law is to operate. The adjacent areas for each State are defined by reference to areas listed in Schedule 1 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and limited by the outer limits of the continental shelf and other descriptions in Sch 1 cl 14. The inner adjacent area for a State is on the landward side of the baseline and within 12 nautical miles seaward of the baseline (Sch 1 cl 1(1), definition). The outer adjacent area is the remainder of the adjacent area outside the inner adjacent area (Sch 1 cl 1(1), definitions; Sch 1 cl 2).

• Substantive criminal law versus law of criminal investigation, procedure and evidence. The Scheme differentiates substance (offences, defences, confiscation, compensation, interpretation) from procedural and investigative law (arrest, custody, bail, evidence, committal hearings, sentencing procedures) (Sch 1 cl 1(1) definitions). Substantive State law is applied into adjacent areas (inner by State law, outer by Commonwealth application), but the procedural law that governs investigations and judicial proceedings depends on which authority conducts them and where the proceedings are commenced (Sch 1 cl 2; Sch 1 cl 3).

• Area of administrative responsibility. This includes the State’s land area, its inner adjacent area, and any other adjacent-area parts where the State has responsibility under the intergovernmental agreement, whether exclusive or concurrent (Sch 1 cl 3(1)).

• Intergovernmental agreement. A written agreement between the Commonwealth Attorney-General and participating State Ministers that allocates responsibility for administering and enforcing maritime criminal law and may provide for concurrent responsibility in specified parts of adjacent areas (Sch 1 cl 5). The Act requires publication of that agreement and any amendments in the Gazette (s 5).

• Evidentiary presumption about locus. In proceedings for a maritime offence, once an element is proved, the allegation that the act, omission or state of affairs occurred in the named adjacent area is taken to be proved unless rebutted (Sch 1 cl 4). This shifts the burden of proving geographic locus onto the party disputing location.

• Commonwealth Attorney-General consent for foreign-flag prosecutions. Where an alleged offence is on or from a foreign ship that is registered abroad and that country has jurisdiction by international law, written AG consent is required before the charge can proceed to hearing, determination or a committal preliminary examination (Sch 1 cl 7(1)). The AG must consider views of the country of registration (Sch 1 cl 7(2)); the absence of consent does not prevent arrest, laying of a charge or extradition proceedings but a refusal mandates a permanent stay of proceedings (Sch 1 cl 7(3), (4)).

• Regulatory architecture. The Act allows regulations by the Governor on matters necessary to carry out the Act (s 6(1)); however, special limits apply to making regulations for the cooperative scheme (s 6(2)-(3)). The Scheme itself provides that the Governor-General may make regulations for prescribed matters, but regulations affecting the operation of the Scheme in relation to a State’s inner adjacent area need the agreement of the participating State Minister for that State (Sch 1 cl 12(1)-(2)).

• Territorial referents and map. The adjacent areas are defined by reference to other Commonwealth maritime statutes (Sch 1 cl 13-14), baselines are specified (Sch 1 cl 15), and an indicative map is supplied (Sch 1 cl 16), though the Scheme prevails over the map in case of inconsistency.

These concepts operate together to allocate who may make decisions, how prosecutions are initiated and where procedural and substantive legal rules apply. The separation between substantive law (applied outward by State or Commonwealth) and investigatory/procedural law (tied to the investigating/prosecuting authority and the forum) is central and creates a potential for procedural-substantive mismatches that the Scheme explicitly recognises (Sch 1 cl 2(3), cl 3(2)(c)).

The Act creates legal consequences for a distinct and overlapping set of actors and entities. List and describe each affected group and the specific legal impact on them, grounded in the text.

• State governments and participating State Ministers. States effect the application of their substantive criminal laws into inner adjacent areas by operation of their own law (Sch 1 cl 2(1)). Participating State Ministers may negotiate and sign the intergovernmental agreement allocating administrative responsibility (Sch 1 cl 5). A participating State Minister must agree to any regulation affecting the operation of the Scheme in relation to the State’s inner adjacent area (Sch 1 cl 12(2)). States therefore pay the political and administrative costs of extending criminal statutes beyond the shoreline, and they determine local procedural law in their area of administrative responsibility (Sch 1 cl 3(2)(b)).

• Commonwealth Attorney-General and Commonwealth executive agencies. The Commonwealth Attorney-General negotiates the intergovernmental agreement on behalf of the Commonwealth, must grant written consent before certain prosecutions proceed against persons alleged to have offended on foreign-registered ships when that foreign country has jurisdiction, and must consider the views of that country before consenting (Sch 1 cl 5; cl 7(1)-(2)). The Commonwealth also applies State substantive criminal law in the outer adjacent area by force of Commonwealth law (Sch 1 cl 2(2)), so Commonwealth agencies may conduct investigations and prosecutions in those outer adjacent areas under Commonwealth procedural law (Sch 1 cl 3(2)(a)). The AG’s consent requirement imposes a centralised political check on prosecutions affecting foreign jurisdictions (Sch 1 cl 7).

• State and Commonwealth investigative and prosecutorial authorities. The Scheme determines which procedural law governs their investigative acts and allows for the intergovernmental agreement to allocate exclusive or concurrent responsibility in parts of adjacent areas (Sch 1 cl 3(2)(a)-(b); cl 5). Authorities must operate under their respective investigative and evidentiary laws and will be affected by the Scheme’s exclusion of the Administrative Decisions (Judicial Review) Act 1977 for State decisions arising under the Scheme (Sch 1 cl 3(5)).

• Courts and judicial actors. The law that governs judicial proceedings depends on whether the proceeding is a Commonwealth judicial proceeding or a State judicial proceeding; the governing procedural law follows that classification irrespective of where the underlying substantive law originated (Sch 1 cl 3(2)(c)). Courts are required to stay proceedings that contravene the intergovernmental agreement on application by the Commonwealth Attorney-General or a participating State Minister (Sch 1 cl 6(1)-(2)). A court is not required to inquire into compliance with the intergovernmental agreement unless an application for a stay is made (Sch 1 cl 6(3)(b)).

• Shipowners and seafarers, including foreign-flag vessels. The Scheme extends State substantive criminal law into adjacent areas, which include the space above and below those areas, thereby affecting ships, floating structures and similar craft (Sch 1 cl 1(1) definitions; cl 14(1)-(4)). Where a vessel is registered in another country and that country has jurisdiction by international law, prosecutions on or from that ship require Commonwealth AG consent (Sch 1 cl 7(1)). Foreign governments are therefore involved indirectly because their views must be considered in consent decisions (Sch 1 cl 7(2)).

• Offshore industry participants. The adjacent areas are defined by reference to areas in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and by the continental shelf outer limits (Sch 1 cl 14). The Scheme applies to the space above and below those areas, which affects seabed operations, petroleum activities and related third-party contractors who may become subject to State substantive offences applied offshore.

• Defence Force vessels. The definition of Australian ship includes vessels belonging to an arm of the Defence Force (Sch 1 cl 1(1)), so Defence Force vessels are within the definition of Australian ships for the purposes of the Scheme and are subject to the incidence of State substantive law as applied.

• Legal practitioners and accused persons. Defence counsel and prosecutors must navigate the bifurcated regime where substantive law originates from a State but procedural rules and prosecutorial competence may differ depending on authority and forum (Sch 1 cl 2; cl 3). The evidentiary presumption about locus (Sch 1 cl 4) affects defence strategy where location is contested; the Commonwealth AG consent requirement (Sch 1 cl 7) creates a potentially dispositive interlocutory issue.

• Foreign governments. When a foreign-registered ship is involved, the Commonwealth AG must consider the foreign government’s views before consenting to prosecution (Sch 1 cl 7(2)), which introduces diplomatic and international-law considerations into criminal decision-making.

In short, the Act affects multiple sovereign actors, regulatory agencies, maritime industries and private individuals who operate in the spatially defined adjacent areas. Those actors face altered investigative and prosecutorial jurisdictions, potential procedural mismatches, and centralised consent gates for foreign-flag matters.

The Act and Scheme do not create new criminal offences within the text provided, but they impose duties, confer authorities and establish rights and procedural prerequisites. These are the principal legal duties, decision rights and enforceable rights created by the instrument.

Duties and obligations

• Publication duty. The Minister must publish the intergovernmental agreement and any amendment in the Gazette (s 5). That creates an obligation for transparency in the allocation of administrative responsibility.

• Commonwealth AG consent gate. The Commonwealth Attorney-General must provide written consent before specified prosecutions against alleged offences on or from foreign ships registered in another country and subject to that country’s jurisdiction can proceed to hearing, determination or committal preliminary examination (Sch 1 cl 7(1)). The AG is obliged to take into account any views expressed by the government of the country of registration before granting consent (Sch 1 cl 7(2)).

• Regulation-making duties and limitations. The Governor may make regulations for matters required or permitted to be prescribed under the Act (s 6(1)); however regulations for the purposes of the cooperative scheme are limited by s 6(2) and s 6(3), which preserves regulatory competence over classification of offences for the scheme (s 6(3)). Separately, the Governor-General may make regulations for the Scheme (Sch 1 cl 12(1)), but a regulation affecting the inner adjacent area for a State may only be made with the agreement of the participating State Minister (Sch 1 cl 12(2)).

Decision rights and discretionary powers

• Allocation of enforcement responsibility. The Commonwealth Attorney-General and participating State Ministers have the right to enter an intergovernmental agreement allocating responsibility for administering and enforcing maritime criminal law, including concurrent responsibility in specified parts of the adjacent area (Sch 1 cl 5). That contractual-like allocation creates discretionary administrative authority to decide who investigates and prosecutes particular areas or incidents.

• Stay power tied to intergovernmental agreement. A court must permanently stay proceedings if a charge is brought contrary to the intergovernmental agreement and an application is made by the Commonwealth Attorney-General or a participating State Minister (Sch 1 cl 6(1)-(2)). The right to apply for a stay resides with those executive actors.

• Evidentiary presumption. In proceedings for a maritime offence, once an element is proved, an allegation that it occurred in the adjacent area is presumed to be proved in the absence of proof to the contrary (Sch 1 cl 4). This creates a procedural advantage for prosecutors, shifting practical proof burdens on locus to defendants.

Rights and procedural protections

• Procedural governance by forum and authority. The Scheme specifies which procedural and evidentiary laws apply to investigations and judicial proceedings based on whether the acting authority is Commonwealth or State and where the judicial proceeding is commenced (Sch 1 cl 3(2)). This is a right for the actor to rely on the procedural law appropriate to their classification; it is also a right for defendants to have proceedings governed by that framework.

• Acceptance of apparent consent documents. In any proceedings, a document that appears to be a genuine copy of written Commonwealth AG consent under cl 7 will be accepted, in the absence of proof to the contrary, as proof that consent was given (Sch 1 cl 7(5)). This reduces litigation cost and evidentiary dispute about consent authenticity.

• Preservation of earlier law for pre-commencement conduct. Despite repeal of the prior Crimes (Offences at Sea) Act 1980 (s 7), acts and omissions that occurred before the commencement day remain governed by the repealed Act as if repeal had not happened (s 8(2)). This is a protective rule for persons whose conduct pre-dates the new Scheme.

Limitations and exclusions

• Non-application to certain areas. The Scheme does not apply to the Joint Petroleum Development Area (Sch 1 cl 10). Also, the Scheme does not apply to State and Commonwealth laws excluded by regulation (Sch 1 cl 9). Substantive State laws incapable of operating in the adjacent area or expressly limited to the area of the State are excluded from extended application (Sch 1 cl 2(3)(a)-(b)).

• ADJR limitation. The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) does not apply to decisions taken under State law that applies to investigations, procedures and acts by State authorities under Sch 1 cl 3(2)(b) (Sch 1 cl 3(5)). That reduces the Commonwealth-based federal judicial review route for such State decisions.

Together these duties and rights define the legal mechanics for allocating responsibility offshore, determining the applicable procedural law, introducing diplomatic input into prosecutions involving foreign ships, and setting boundaries for review and enforcement.

The Act is a procedural and jurisdictional instrument. It does not itself create new criminal penalties; instead it structures how existing State substantive criminal laws apply offshore and how enforcement, prosecution and judicial remedies operate. The enforcement mechanics to note are the following.

Application of existing penalties

• The substantive criminal laws of participating States continue to create offences and penalties; the Scheme extends the reach of those substantive laws into specified adjacent areas (Sch 1 cl 2(1)-(2)). Therefore the substantive penalties remain those set out in the State statutes that are applied, including any statutory sentencing ranges and ancillary penalty regimes such as confiscation and compensation where those State laws provide for them (Sch 1 cl 1(1) definitions of substantive criminal law).

Prosecutorial and investigative enforcement

• Allocation of investigative law. The law of criminal investigation, procedure and evidence that applies to maritime offences depends on whether Commonwealth or State authorities are conducting the act or investigation (Sch 1 cl 3(2)(a)-(b)). This determines the powers available to investigators, police and prosecutors: arrest, warrants, bail and other pre-trial procedural acts are governed by the law of the authority exercising the power (Sch 1 cl 3(2)).

• Division of enforcement responsibility. The intergovernmental agreement can allocate exclusive or concurrent responsibility to each jurisdiction for administering and enforcing maritime offences (Sch 1 cl 5). The agreement’s allocation is binding on charges: a charge cannot be brought in contravention of the agreement (Sch 1 cl 6(1)) and, if it is, a permanent stay is available on application by the Commonwealth Attorney-General or a participating State Minister (Sch 1 cl 6(2)).

Judicial enforcement dynamics

• Procedural law in courts. In Commonwealth judicial proceedings the law of the Commonwealth applies; in State judicial proceedings the law of the State in which the proceeding was commenced applies, irrespective of the substantive law invoked (Sch 1 cl 3(2)(c)). This can affect available sentencing processes, jury rules and other court procedures. The Schedule gives the example that a South Australian court will classify an offence for sentencing by South Australian rules even if the alleged conduct occurred in the adjacent area for Western Australia (Sch 1 cl 3(2) example).

• Stay remedies and finality. A permanent stay of proceedings is the specific judicial remedy for non-compliance with the intergovernmental agreement in initiating a charge (Sch 1 cl 6(2)). The Scheme qualifies that a contravention does not affect a court’s jurisdiction but requires a stay where the executive applies for one (Sch 1 cl 6(3)(a)-(b)).

Evidence and locus

• Presumption on locus. If an element of an offence is proved, an allegation that the act occurred in the adjacent area is taken to be proved in the absence of contrary proof (Sch 1 cl 4). This evidentiary rule effectively lowers the prosecution’s burden of proving geographic locus; defendants must adduce contrary evidence to rebut the presumption.

Special constraints and international considerations

• Commonwealth AG consent for foreign-flag vessels. A prosecutorial gate keeps potentially sensitive foreign-flag prosecutions under central executive oversight. Without written consent, specified prosecutions cannot proceed to hearing or committal; a refusal leads to a mandatory permanent stay (Sch 1 cl 7(1), (4)). Arrest, laying of charges, extradition processes and custody or bail proceedings remain possible without consent (Sch 1 cl 7(3)), so enforcement activities can proceed even where consent is withheld, but the charge cannot advance to trial.

• Acceptance of apparent consent documents. The Scheme avoids procedural disputes over the authenticity of AG consent by providing that an apparently genuine consent document will be accepted as proof unless disproved (Sch 1 cl 7(5)). This reduces evidentiary challenge costs during trial.

Limits on review and regulation

• Exclusion of ADJR. The Administrative Decisions (Judicial Review) Act 1977 does not apply to State decisions made under the Scheme in respect of investigation and procedure, limiting a Commonwealth-based pathway for judicial review of those State administrative acts (Sch 1 cl 3(5)).

• Regulations and classification. The Act and the Scheme permit regulations to be made about classification of offences for cooperative-scheme purposes (s 6(3)). That allows the executive to affect how offences are treated in the offshore context, which in turn affects enforcement priorities and prosecutorial classification.

In short, enforcement hinges on which authority acts and where the forum sits. The Scheme uses executive agreement and prosecutorial consent gates to manage interjurisdictional tensions and foreign-government sensitivities, prescribes the applicable procedural law by actor and forum, and provides particular evidentiary rules to ease prosecutions concerning locus.

The Scheme is constructed to interact with existing Commonwealth and State maritime and constitutional law; the Act expressly references and limits the interaction with specific statutes and legal principles.

References to Commonwealth maritime law

• Offshore Petroleum and Greenhouse Gas Storage Act 2006 and Seas and Submerged Lands Act 1973. The definition of adjacent areas relies directly on Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the baseline/territorial sea concepts in the Seas and Submerged Lands Act 1973 (Sch 1 cl 13-14). The adjacent area descriptions are therefore functionally tethered to the mapping and delimitations established by those statutes.

• Joint Petroleum Development Area. The Scheme expressly excludes the Joint Petroleum Development Area from its application (Sch 1 cl 10). Where other Commonwealth regimes apply to that area, the cooperative scheme does not displace them.

Constitutional limits and conflicts

• Preserving limitations of State law under the Constitution. The Scheme does not give a substantive provision more legal effect in an adjacent area than it has within the State under the Constitution (Sch 1 cl 2(3)(b)). The Schedule illustrates that State laws subject to section 109 of the Constitution will be limited to the same extent offshore as they are onshore.

• Procedural law and constitutional rules. The Scheme recognises constitutional constraints on trial procedure when it states that judicial proceedings must be governed by the law of the forum; the example cites Cheatle v The Queen concerning jury-majority verdicts and the Commonwealth Constitution (Sch 1 cl 3(2) example). That signals that constitutional protections in the forum may restrict certain procedural outcomes even when the substantive law originates elsewhere.

Interplay between State substantive law and Commonwealth procedural application

• Different legal sources for substance and procedure. The Scheme applies State substantive criminal law in outer adjacent areas by force of Commonwealth law (Sch 1 cl 2(2)). This creates an interaction where Commonwealth legislative power is used to make State substantive offences effective in outer areas. Investigatory and procedural rules will apply according to the actor and forum, sometimes resulting in a State substantive offence being prosecuted under Commonwealth procedural rules in Commonwealth courts, or under State rules in State courts (Sch 1 cl 3(2)(c)). This split can create practical inconsistencies in classification and sentencing approach.

Administrative law and judicial review

• Exclusion of ADJR. The Administrative Decisions (Judicial Review) Act 1977 does not apply to State decisions under the Scheme in relation to State investigative acts (Sch 1 cl 3(5)). That narrows the route for federal judicial review in respect of those State administrative decisions but does not necessarily foreclose State-based review mechanisms.

Intergovernmental agreement and statutory primacy

• Intergovernmental agreement limits charges. A charge brought contrary to the intergovernmental agreement must not proceed and may be permanently stayed on application by the Commonwealth Attorney-General or the participating State Minister (Sch 1 cl 6(1)-(2)). The Scheme gives effect to executory agreements by statute; courts are not required to investigate compliance with the agreement unless an application for stay is made (Sch 1 cl 6(3)(b)).

Regulatory architecture and delegation

• Dual regulatory powers. The Act permits the Governor to make regulations necessary to carry out the Act (s 6); the Scheme also gives regulation-making power to the Governor-General to prescribe matters necessary to carry out the Scheme (Sch 1 cl 12). Regulations affecting inner adjacent areas require agreement from the participating State Minister (Sch 1 cl 12(2)). The overlapping delegation points to a shared regulatory machinery requiring co-operation.

Exclusions and savings

• Repeal and savings. The Act repeals the Crimes (Offences at Sea) Act 1980 (s 7), but provides a saving for acts and omissions that occurred before commencement so they remain governed by the repealed Act as if the repeal had not happened (s 8(2)). The Schedule also contains a non-application provision for State and Commonwealth laws excluded by regulation (Sch 1 cl 9).

Overall, the Scheme deliberately integrates with existing maritime, constitutional and administrative law frameworks. It uses Commonwealth power to apply State substantive law in the outer adjacent area while preserving forum-based procedural rules, and it embeds executive-level intergovernmental agreements as binding allocation instruments that courts must respect via stay powers.

The text contains internal legislative-notes indicating a series of amendments and repeals. The Act’s operative lifecycle and later amendments, as reflected in the source, are the following.

• Original Act and commencement. The Act is named the Crimes at Sea Act 1998 (s 1). The Act commences on one or more days appointed by proclamation (s 2).

• Repeal of earlier Act. Section 7 repeals the Crimes (Offences at Sea) Act 1980 (s 7). Section 8 provides that the repealed Act continues to apply to acts and omissions that took place before the commencement day; amendments in section 9 apply to acts and omissions on or after the commencement day (s 8). Section 9 itself has been repealed (s 9: Rep 2003 No 82, Sch 3). The source records that s 8 was substituted by 2000 No 83, Sch 1 [1] (s 8: Subst 2000 No 83, Sch 1 [1]).

• Amendments noted in Schedule 1. Schedule 1 carries amendment notes indicating later modifications to the cooperative scheme. The Scheme was amended by:

  • 1999 No 31, Sch 2.9 [1]-[8],
  • 2000 No 83, Sch 1 [3]-[19],
  • 2007 No 27, Sch 1.12 [1]-[9],
  • 2011 No 27, Sch 2.12 [1]-[3] (annotation in the source: "sch 1: Am 1999 No 31, Sch 2.9 [1]-[8]; 2000 No 83, Sch 1 [3]-[19]; 2007 No 27, Sch 1.12 [1]-[9]; 2011 No 27, Sch 2.12 [1]-[3]").

• Insertion of specific provisions. The source notes that section 10 was inserted by 2000 No 83, Sch 1 [2] (s 10: Ins 2000 No 83, Sch 1 [2]). Section 9 was repealed by 2003 No 82, Sch 3 (s 9: Rep 2003 No 82, Sch 3).

• Gazette publication entry. Section 5 includes an editorial note that the intergovernmental agreement under that section appears in Gazette No 116 of 16.9.2005, p 7521. The note also observes that from April 2021, the Parliamentary Counsel’s Office is no longer updating notes in in-force titles about related Gazette notices and suggests using Gazette Search functionality to find related notices (s 5 editorial note).

• Schedule 2 repeal. Schedule 2 is marked as repealed (sch 2: Rep 2003 No 82, Sch 3).

• Commencement and transitional application. Section 2 leaves commencement to proclamation, which means different parts of the Act could have come into force on different dates. Section 8 defines "commencement day" as the day on which sections 7 and 9 come into operation and preserves the application of the prior Act to pre-commencement conduct (s 8(1)-(4)).

The amendment notes in the source are the only recorded legislative-history items supplied in the text. They indicate iterative modifications to the Schedule and the insertion and repeal of sections in the early 2000s and further amendments in 2007 and 2011. The presence of Gazette and PCO editorial notes suggests that administrative publication and announcement of intergovernmental agreements and amendments have been part of the post-enactment process.

Users wanting the precise content changes and exact dates should consult the amending instruments cited in the annotations (for example, 2000 No 83 Sch 1) and the relevant Gazette notices referenced in s 5 if the specific amendment text, exposure drafts or intergovernmental agreement texts are required for compliance or litigation planning. The Act text itself, as presented, preserves the legal effect of the 1980 Act for conduct prior to commencement and absorbed later textual amendments noted in the schedule annotations.

The text provided contains very limited direct litigation history. It does, however, make two forms of reference to judicial decisions and possible litigation consequences.

• Citation of case law in illustration. The Scheme cites Cheatle v The Queen (1993) 177 CLR 541 in an explanatory example to illustrate a constitutional constraint on procedural outcomes, specifically that a court cannot convict on a jury-majority verdict contrary to constitutional requirements if that would conflict with the applicable constitutional law (Sch 1 cl 3(2)(c), example). The reference is illustrative within the Schedule; the Schedule uses the case to explain that a State court applying its procedural law cannot apply a practice incompatible with the Constitution.

• Procedural remedies and judicial response to executive agreements. The Scheme specifies the courts’ response when charges are brought contrary to the intergovernmental agreement. If a charge contravenes the intergovernmental agreement, a court must, on application by the Commonwealth Attorney-General or the participating State Minister, permanently stay the proceedings (Sch 1 cl 6(1)-(2)). The Scheme clarifies that contravention does not affect the court’s jurisdiction (Sch 1 cl 6(3)(a)) and that absent an application for a stay the court will not usually inquire into compliance with the intergovernmental agreement (Sch 1 cl 6(3)(b)). Any litigation on this point would therefore centre on the executive’s application for a stay and the court’s interpretation of whether the intergovernmental agreement was breached.

• Statutory history that renders earlier decisions relevant. The repeal of the Crimes (Offences at Sea) Act 1980 and the saving provision in s 8 mean that criminal conduct and proceedings initiated before commencement remain governed by the repealed Act (s 7; s 8(2)). This preserves prior case law developed under the 1980 Act for pre-commencement conduct, which may be relevant in transitional disputes.

The text of the Act itself does not list any cases decided under the cooperative Scheme or report judicial commentary about its operation. The only substantive judicial reference is the illustrative mention of Cheatle v The Queen in the discussion of procedural law conflicts. For a complete litigation history,including judicial interpretation of the Scheme, stay applications under cl 6, challenges to AG consent decisions under cl 7, evidentiary challenges to the presumption in cl 4 or disputes over the geographic limits in cl 14,users must search case law databases and court records, since the Act text contains no further reported decisions.

The Scheme introduces several practical and legal pitfalls that lawyers, regulators and affected industry participants need to anticipate. These are concrete operational risks and interpretive traps grounded in the statutory text.

1. Procedural-substantive mismatch. A substantive State offence can be applied in an outer adjacent area by force of Commonwealth law while the procedural rules governing the trial might be Commonwealth rules if it becomes a Commonwealth judicial proceeding (Sch 1 cl 2(2); cl 3(2)(c)). That produces potential incompatibilities: classification, sentencing procedures, jury rules and evidentiary regimes can differ between the State that created the substantive offence and the forum that tries it. The Schedule explicitly recognises the problem and gives examples. Practitioners must map which procedural law governs the investigation and the court.

2. Evidentiary presumption can be dispositive unless rebutted. Sch 1 cl 4 provides that where an element of a maritime offence is proved, an allegation that it occurred in the adjacent area is taken to be proved in the absence of proof to the contrary. Defenders should be ready to seek evidence disproving locus; prosecutors can rely on the presumption to avoid proving precise coordinates. The practical consequence is that contested cases may turn on available navigational, electronic or witness evidence about location.

3. Commonwealth AG consent gate for foreign-flag prosecutions. Sch 1 cl 7 requires written AG consent before certain prosecutions proceed. A refusal mandates a permanent stay of the proceedings (cl 7(4)), yet the absence of consent does not prevent arrest or the laying of charges (cl 7(3)). This means authorities can arrest and charge but may not be able to prosecute to trial if the AG withholds consent. Prosecutors must clear diplomatic and international-law implications early; defence counsel should check whether consent exists and, if absent, move for a permanent stay.

4. Limited judicial inquiry into intergovernmental agreement compliance. Courts will not self-initiate inquiries into compliance with the intergovernmental agreement unless an application for a stay is made (Sch 1 cl 6(3)(b)). This delegatory design places the burden on executive actors to enforce the agreement by applying for stays. It also creates a risk that an improperly brought charge proceeds unless and until the proper executive applies to restrain it.

5. Administrative-review gap. The Administrative Decisions (Judicial Review) Act 1977 does not apply to State decisions that apply State law for investigations and procedures under the Scheme (Sch 1 cl 3(5)). This reduces a federal pathway for review of State administrative action in this context. Affected parties must seek alternative State-based review mechanisms or other Commonwealth remedies where available.

6. Uncertainty about the boundaries and reliance on external statutes. Adjacent areas are defined by reference to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the Seas and Submerged Lands Act 1973 (Sch 1 cl 13-14). Any changes, proclamations or differing interpretations under those statutes can change the Scheme’s spatial application. The Scheme’s indicative map is non-binding (Sch 1 cl 16), so litigants and regulators cannot treat the visual depiction as definitive.

7. Regulations and state agreement constraints. The Act and Scheme allocate regulation-making power but make regulations affecting inner adjacent areas contingent on agreement from participating State Ministers (s 6; Sch 1 cl 12(2)). This bilateral consent requirement can slow regulatory responses and create negotiation points where State interests diverge from Commonwealth priorities.

8. Substantive laws incapable of extraterritorial operation are excluded. The Scheme does not extend a State substantive criminal law if it is inherently localised or expressly limited to places within the State (Sch 1 cl 2(3)(a)). Not all offences are capable of being applied offshore; prosecutors must examine the localising elements of an offence before attempting to apply it in an adjacent area.

9. Foreign-jurisdiction consultation requirement. The AG must take into account the views of the government of the country of registration before granting consent in foreign-flag cases (Sch 1 cl 7(2)). This introduces an international diplomacy step that can delay prosecutions and introduces the risk that foreign policy considerations will determine prosecutorial outcomes.

10. Repeal-savings technicality. Section 8 preserves the application of the previous 1980 Act for conduct before commencement, and treats acts alleged to have occurred between two dates before and on or after commencement as having occurred before commencement (s 8(2), (4)). This is a timing trap in transitional cases; counsel must check the precise dates and commencement day to determine which statute governs.

Each of these gotchas arises directly from textual provisions. Parties should plan early for which authority will investigate, which procedural law will govern, whether AG consent is required, how to establish or rebut locus, and whether executive intergovernmental arrangements have been observed before bringing charges.

Compliance obligations fall into two categories: operational steps for prosecuting and investigative authorities and practical advice for private parties and defence counsel operating in adjacent areas. The following is a task-oriented checklist grounded in the statutory text.

For investigative and prosecuting authorities

1. Determine and record area of operations. Before investigation or enforcement action, identify whether the alleged conduct occurred in a State’s inner adjacent area or outer adjacent area as defined in Sch 1 cl 14 and cl 15. Keep primary navigational evidence, GPS logs, AIS tracks and witness statements to document locus; the evidentiary presumption at Sch 1 cl 4 means defenders will attempt to rebut, so contemporaneous locational evidence is essential.

2. Check which law applies to procedure and investigation. If a Commonwealth authority is acting, apply Commonwealth criminal investigative, evidentiary and procedural law (Sch 1 cl 3(2)(a)). If a State authority is acting within its area of administrative responsibility, apply the State law of criminal investigation, procedure and evidence (Sch 1 cl 3(2)(b)). Before executing warrants or making arrests, confirm the applicable statutory power to ensure admissibility and legality of acts.

3. Verify intergovernmental agreement allocations. Consult the published intergovernmental agreement (s 5) and any amendments. Ensure the charge being considered is not contrary to the agreement; charges that breach the agreement must not be brought because a court may grant a permanent stay on application by the Commonwealth AG or participating State Minister (Sch 1 cl 6(1)-(2)).

4. For foreign-registered ships, seek Commonwealth AG consent where required. If the offence is alleged to have been committed on or from a foreign ship registered elsewhere and the country of registration has jurisdiction under international law, obtain written Commonwealth Attorney-General consent before proceeding to hearing or committal (Sch 1 cl 7(1)). Document communication with the AG and any consideration of the foreign government’s views (Sch 1 cl 7(2)). Keep records of the consent document; Sch 1 cl 7(5) treats an apparently genuine copy as proof in proceedings absent proof to the contrary.

5. Coordinate regulatory changes and classifications. If creating or using regulations affecting the Scheme, ensure compliance with s 6 and Sch 1 cl 12. Regulations affecting inner adjacent areas require agreement of the participating State Minister for the relevant State (Sch 1 cl 12(2)). For classification of offences in the Scheme, s 6(3) authorises regulation-making.

6. Preserve administrative decision records. Because the ADJR is excluded for State decisions in the Scheme (Sch 1 cl 3(5)), ensure State decision-making under the Scheme adheres to administrative-law best practice and is documented to withstand review in alternative forums.

For private parties, ship operators and defence counsel

1. Maintain navigational and operational logs. Since the Scheme presumes location where an element of the offence is proved (Sch 1 cl 4), ship operators should maintain clear, contemporaneous evidence of location, crew activities and voyage data; this is the primary way to rebut jurisdictional assertions.

2. Check the flag state and international jurisdiction. If a vessel is foreign-flagged, understand that the Commonwealth AG must be approached (or will be approached by prosecuting authorities) before certain prosecutions proceed (Sch 1 cl 7). Defence counsel should request production of the AG consent document and, if absent, promptly apply for a permanent stay under Sch 1 cl 7(4).

3. Map the intergovernmental agreement. Obtain and review the intergovernmental agreement published in the Gazette under s 5 to see which authorities have responsibility in the relevant part of the adjacent area. If an improper jurisdictional allocation has been used by the prosecutor, the defence should consider an interlocutory application for stay under Sch 1 cl 6.

4. Prepare for forum-related procedural differences. Defence counsel should identify whether the proceeding is a Commonwealth or State judicial proceeding, because procedural rights, jury arrangements and committal processes may differ (Sch 1 cl 3(2)(c)). Early clarification of the nature of the proceeding can frame pre-trial strategy, selection of objections and challenge to admissibility.

5. Use alternative review mechanisms. Given the exclusion of the ADJR for State investigative acts under the Scheme (Sch 1 cl 3(5)), if administrative decisions are contested, determine available State judicial review paths and preserve appeals and record-keeping for subsequent challenges.

6. For industry regulators and operators, track statutory maps and proclamations. The Scheme’s adjacent-area definitions rely on other Commonwealth statutory texts and proclamations (Sch 1 cl 14-16). Keep up to date with any changes to the Offshore Petroleum and Greenhouse Gas Storage Act scheduled areas, baselines or proclamations that may alter what area is an adjacent area for a State.

Operational checklist for prosecutors and police before charging

• Confirm geographic locus with contemporaneous evidence; prepare for Sch 1 cl 4 presumption.
• Check the intergovernmental agreement to ensure the charge is permitted in that forum (Sch 1 cl 5-6).
• If the accused is associated with a foreign-registered ship and the foreign state has jurisdiction, seek written Commonwealth AG consent before proceeding to trial or preliminary committal (Sch 1 cl 7).
• Ensure the investigative steps are taken under the correct investigative law (Commonwealth or State) to avoid exclusion of evidence (Sch 1 cl 3(2)).
• If proceeding in a Commonwealth court, prepare to try the offence under Commonwealth procedural law; if proceeding in a State court, prepare under the State’s procedural law (Sch 1 cl 3(2)(c)).

These steps flow directly from the statutory text and are designed to mitigate the central risks created by the Scheme: jurisdictional error, procedural mismatches, diplomatic impediments to prosecution, evidentiary disputes about locus, and regulatory consent bottlenecks.