Definitions and spatial concept

• The schedule defines an adjacent area for each State, with inner adjacent area and outer adjacent area sub-divisions (sch-sec.1; sch-sec.14-15). The baseline for each State is taken from Australia’s territorial sea baselines (sch-sec.15). The adjacent areas draw on the offshore areas identified by the Offshore Petroleum and Greenhouse Gas Storage Act 2006, including space above and below those areas (sch-sec.14). The map in Appendix 1 is indicative only; the statutory provisions prevail over the map (sch-sec.16).

Substantive criminal law versus procedural law

• Substantive criminal law is defined broadly to include creation of offences, capacity to incur criminal liability, defences, confiscation, compensation and related matters (sch-sec.1). The schedule applies the substantive criminal law of the relevant State to the inner adjacent area by force of State law and to the outer adjacent area by force of Commonwealth law (sch-sec.2). In contrast, the law of criminal investigation, procedure and evidence is separately defined (sch-sec.1) and allocated by the scheme depending on which authority conducts the investigation or which court is conducting proceedings (sch-sec.3).

Division of substantive and procedural competencies

• The schedule separates who decides substantive questions (the State law that creates and defines offences) from who determines the procedures that govern investigation and prosecution (either Commonwealth or State rules, depending on the authority) (sch-sec.2-3). For example, an offence may be a State-created offence applied offshore, but the procedures for investigating or for conducting the trial may be governed by Commonwealth law if the investigating authority is a Commonwealth agency (sch-sec.3-ssec.2).

Intergovernmental agreement and forum-stays

• The Attorney-General of the Commonwealth and participating State Ministers may agree how responsibility for administering and enforcing maritime offences is divided, including concurrent responsibilities (sch-sec.5). The agreement is enforceable in a limited way: charges cannot be brought contrary to the agreement, and the Commonwealth AG or a participating State Minister can apply for a permanent stay if a charge is brought contrary to it (sch-sec.6).

Consent mechanism for foreign-flagged ships

• A written consent from the Commonwealth Attorney-General is required before a charge proceeds to hearing or committal if the alleged offence occurred on or from a foreign ship that has jurisdiction under international law (sch-sec.7). Before granting consent the Attorney-General must take into account views expressed by the flag state (sch-sec.7-ssec.2). Notably, absence of consent does not prevent arrest or charging, nor extradition or remand, but a refusal to give consent requires a permanent stay (sch-sec.7-ssec.3-4).

Evidentiary presumption

• Where a material element of an offence (an act, omission or state of affairs) is proved, an allegation that it occurred in the adjacent area (inner or outer as charged) is treated as proved unless rebutted (sch-sec.4). This shifts immediate evidential burden on the locus of the offence onto the defendant to prove contrary.

Scope limits and exclusions

• The scheme expressly excludes State substantive laws that are incapable of operating in the adjacent area or are expressly limited to places within the State (sch-sec.2-ssec.3(a)). It also permits the Governor-General to exclude laws from the scheme by regulation (sch-sec.9; sch-sec.12). The Acts Interpretation Act applies to the scheme (sch-sec.11).

Procedural hierarchy and exclusion of ADJR

• The schedule operates to exclude any Commonwealth or State law inconsistent with its allocation of procedural rules; later laws are to be construed subject to it unless they expressly override the clause (sch-sec.3-ssec.3-4). The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) does not apply to State decisions taken under State law that applies to State authorities’ investigations, procedures and acts in the State’s area of administrative responsibility (sch-sec.3-ssec.5).

The scheme therefore creates a layered legal architecture offshore: State-created offences attach to people or conduct in defined offshore areas but the procedural rules that govern investigations, arrests and court proceedings depend on which authority acts and where proceedings are commenced. The intergovernmental agreement, evidentiary presumption and AG consent procedures are control points that alter prosecutorial and investigative behaviour in practice.

Authorities and decision-makers

• Commonwealth Attorney-General: negotiates and signs the intergovernmental agreement (sch-sec.5), receives and decides consent requests for prosecutions involving foreign-flagged ships (sch-sec.7), and may apply for a stay where a charge contravenes the intergovernmental agreement (sch-sec.6).
• Participating State Ministers: negotiate and sign the intergovernmental agreement, may be a party to stay applications under the agreement, and must agree to any regulation that would affect the operation of the scheme in the inner adjacent area for the State (sch-sec.5; sch-sec.6; sch-sec.12-ssec.2).
• Commonwealth and State authorities (police and other agencies): investigative and enforcement activities are governed by the law of the authority’s level , Commonwealth authorities are governed by Commonwealth rules for investigations/procedures/acts, State authorities by State rules when operating in the State’s area of administrative responsibility (sch-sec.3-ssec.2).

Courts and judicial processes

• Courts in which charges are brought will apply the procedural law of the jurisdiction in which the proceeding is commenced; that determines classification of offences in committal and trial contexts (sch-sec.3-ssec.2). The schedule also constrains courts’ inquiry into compliance with the intergovernmental agreement: a court will not normally enquire into compliance except on application by the Commonwealth AG or a participating State Minister (sch-sec.6-ssec.3).

Defendants and maritime operators

• Persons charged with maritime offences: will be subject to State substantive offences applied offshore; the evidentiary presumption about locus (sch-sec.4) benefits the prosecution unless rebutted. Where the alleged offence occurred on a foreign-registered ship with flag-state jurisdiction, the Commonwealth AG’s consent will control whether the matter can proceed beyond committal/hearing (sch-sec.7).
• Ship operators and owners, both Australian and foreign: Australian ships (as defined) and foreign ships have different treatment under the consent rules (sch-sec.1; sch-sec.7). Operators of installations, vessels and vessels’ crews operating in adjacent areas to resource areas (noted by reference to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in sch-sec.14) will be affected by the application of State criminal law to activities above and below the continental shelf.

Industry and commercial participants

• Offshore resource and services industries (petroleum, seabed operations, shipping services): the adjacent area definitions (sch-sec.14) explicitly capture areas described in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the space above and below them, which puts many offshore commercial activities within the reach of State substantive criminal offences as applied offshore. Firms operating in those areas may face criminal exposure under State statutes as applied by the Commonwealth in outer adjacent areas (sch-sec.2; sch-sec.14).
• Insurers, maritime service providers and contractors: will need to account for what criminal regimes apply to contractors’ and seafarers’ conduct offshore, and for potential procedural differences in investigation and prosecution depending on which authority acts (sch-sec.3).

Legal practitioners and courts

• Defence counsel and prosecutors: must navigate mixed substantive-procedural layers, with practical consequences for how charges are framed, which procedural rules apply in committal and trial steps, and when to seek stays or AG consents (sch-sec.2-7; sch-sec.3).
• Administrative law and judicial review practitioners: note the limited application of the Administrative Decisions (Judicial Review) Act 1977 to State decisions in the State’s area of administrative responsibility under the schedule (sch-sec.3-ssec.5).

Other public actors

• Foreign states: will have a consultative role in the AG consent process if an alleged offence occurs on a ship they have jurisdiction over; their views are a required consideration (sch-sec.7-ssec.2).
• Regulators: the Governor-General can make regulations to carry out the scheme; but changes affecting inner adjacent areas require participating State Minister agreement, creating a role for State ministers in regulatory change (sch-sec.12).

In short, the schedule affects multiple layers of the criminal justice system, offshore industry participants, and foreign states in the case of foreign-flagged ships. It shifts the locus of decision-making in certain respects to the Commonwealth Attorney-General and to the intergovernmental agreement, while preserving substantial roles for State authorities within areas of administrative responsibility (sch-sec.3; sch-sec.5-7).

Duties created or clarified by the schedule

• Duty to apply State substantive criminal law in inner adjacent areas: By force of the law of the State, the State’s substantive law must operate throughout the inner adjacent area for that State (sch-sec.2-ssec.1). Administratively, State authorities must therefore enforce and apply their substantive criminal statutes to conduct in the inner adjacent area.
• Commonwealth duty to apply State substantive law in outer adjacent areas: The Commonwealth is required to apply State substantive criminal provisions throughout the outer adjacent area for the State (sch-sec.2-ssec.2). This places a duty on the Commonwealth to give effect to State offences in outer adjacent areas.
• Duty to follow allocated procedural law: Authorities conducting investigations must follow the law of the Commonwealth where the authority is a Commonwealth authority, and the law of the relevant State when a State authority operates in its area of administrative responsibility (sch-sec.3-ssec.2).
• Duty of Commonwealth Attorney-General to consider views of foreign government before granting consent: sch-sec.7-ssec.2 requires the Commonwealth Attorney-General to take into account any views expressed by the flag state government when considering consent for prosecutions on foreign-registered ships.

Rights and procedural protections

• Right to be charged in accordance with the intergovernmental agreement: The intergovernmental agreement determines the allocation of prosecutorial responsibility; a charge brought contrary to it may be permanently stayed on application by the Commonwealth AG or a participating State Minister (sch-sec.6). This creates a procedural protection for the coordinated allocation agreed by the parties.
• Evidentiary presumption for the prosecution: The scheme grants a presumptive evidentiary advantage to prosecutors for the locus element: once the act is proved, the allegation it occurred in the adjacent area is taken as proved unless rebutted (sch-sec.4). Defence practitioners have the right to attempt to displace that presumption.
• Right to arrest and charge despite lack of AG consent in foreign-flagged ship cases: Absence of AG consent does not bar arrest, laying charge, extradition or remand (sch-sec.7-ssec.3). However, if the AG later declines to consent, the court must stay proceedings (sch-sec.7-ssec.4).
• Right to rely on procedural classification of offences according to the law of the court where proceedings commence: In State proceedings, offences will be classified for committal and trial according to the procedural rules of the State in which the court sits, even if the substantive offence originates from another State (sch-sec.3-ssec.2).

Regulatory processes and limitations

• Regulatory power with State concurrence in inner adjacent areas: The Governor-General may make regulations to carry the scheme into effect; but any regulation affecting the operation of the scheme in an inner adjacent area requires the agreement of the participating State Minister (sch-sec.12). This imposes an intergovernmental concurrence requirement for inner-area regulatory changes.

Exclusions and interpretive constraints

• Exclusion of laws incapable of operating offshore: The scheme does not apply to State substantive laws that are incapable of applying in an adjacent area because of inherent localisation (e.g., road-speed offences) or express limitation to the State area (sch-sec.2-ssec.3(a)). Equally, the scheme does not give a provision a legal effect offshore that it does not have within the State (sch-sec.2-ssec.3(b)).

Allocation of decision-making power

• Intergovernmental allocation of responsibility: The AG and participating State Ministers can allocate exclusive or concurrent responsibilities by agreement (sch-sec.5). The practical effect is a statutory process where the agreement governs which authority prosecutes or enforces, subject to the stay mechanism (sch-sec.6).

The schedule therefore imposes duties on Commonwealth and State actors to apply State substantive law offshore, delegates responsibilities for procedural law by reference to the acting authority and the court’s jurisdiction, and creates rights and procedural mechanisms including stays and evidentiary presumptions that change how prosecutions and defences will be carried out in the maritime context (sch-sec.2-7; sch-sec.3).

Direct penalty provisions

• The schedule itself does not create new substantive offences or specify penalties. Instead it provides the mechanism by which existing State offences (and their existing penalties) apply in adjacent areas (sch-sec.2). Therefore penalties for conduct in the adjacent area will be those embedded in the State substantive offences as applied by the State (for inner adjacent area) or by the Commonwealth giving effect to State law (outer adjacent area) (sch-sec.2-ssec.1-2).

Enforcement mechanisms and control points

• Investigative law allocation: The law of criminal investigation, procedure and evidence applicable to a given investigation or act is determined by which authority acts (Commonwealth or State) and the area of administrative responsibility (sch-sec.3-ssec.2). Consequently, the powers available to investigators , arrest, search, evidence-gathering, evidentiary admissibility and related procedures , will follow the procedural law of the acting authority. Enforcement practice will therefore differ depending on whether a Commonwealth or State authority is investigating.
• Intergovernmental agreement and stays: If a charge is brought contrary to the intergovernmental agreement, the Commonwealth AG or a participating State Minister may apply for a permanent stay; if the court is satisfied the agreement has been contravened, the proceedings must be permanently stayed on application (sch-sec.6-ssec.2). The clause also provides that a contravention of the agreement does not affect a court’s jurisdiction; the stay must be applied for by the Commonwealth AG or a participating State Minister, and courts will not in general investigate compliance with the agreement unless such an application is made (sch-sec.6-ssec.3).
• AG consent for foreign-registered ships: The Commonwealth Attorney-General’s written consent is a gating mechanism: if a foreign-flagged ship (registered under another country) is involved and that flag state has jurisdiction, prosecution cannot proceed to hearing or committal without consent. The Attorney-General must consider views expressed by the flag state (sch-sec.7-ssec.1-2). If the Attorney-General declines consent, the court must permanently stay proceedings (sch-sec.7-ssec.4). This creates an enforcement constraint where bilateral/multilateral jurisdictional issues arise.
• Arrest, charging and extradition despite consent process: The absence of AG consent does not prevent arrest, laying of charges, extradition proceedings, or remand decisions (sch-sec.7-ssec.3). Therefore immediate enforcement actions remain available to authorities even where consent is pending; the consent mechanism only affects progression to hearing/committal.
• Evidentiary presumption: The presumption about locus reduces a factual hurdle for prosecutors: once the act or omission element is proved, the allegation that it occurred in the adjacent area is treated as proved unless the defence disproves it (sch-sec.4). That presumption will affect how prosecutors and defence counsel approach evidence collection and factual disputes about location.

Judicial constraints and constitutional considerations

• The scheme recognises constitutional limits: if a substantive provision is limited under s 109 of the Constitution within the State area, the same limitation applies in the outer adjacent area even though the Commonwealth gives the law effect there (sch-sec.2-ssec.3(b) , example). Also, sch-sec.3 notes that procedural law allocations operate subject to the Constitution; that example references Cheatle v The Queen (1993) 177 CLR 541 as a precedent on jury verdicts and constitutional limits on procedural rules applicable in Commonwealth judicial proceedings (sch-sec.3).
• Exclusion of ADJR Act: The Administrative Decisions (Judicial Review) Act 1977 does not apply to State decisions applied under State law in the State’s area of administrative responsibility under the scheme (sch-sec.3-ssec.5), which limits an avenue for judicial review of certain administrative acts undertaken by State authorities in those areas.

Practical enforcement consequences

• Practically, enforcement will be a hybrid operation: State substantive offences enforced offshore but procedural questions answered by the procedural law attached to the enforcing authority. The AG consent and intergovernmental-agreement stay mechanisms create regulatory chokepoints that can halt a prosecution even after arrest and charging in particular international-jurisdiction or intergovernmental-agreement situations (sch-sec.6-7). Investigators and prosecutors will have to plan enforcement operations in awareness of these control points and of the differences between inner and outer adjacent areas.

In summary, enforcement relies on existing State penalties transplanted offshore via this scheme, while the schedule supplies mechanisms (procedural allocation, AG consent, evidentiary presumption, intergovernmental-agreement stay) that affect whether and how those penalties can be pursued in practice (sch-sec.2-7; sch-sec.3-4).

Express references to other Commonwealth and State law

• Judiciary Act 1903: The schedule treats certain State law provisions as part of the Commonwealth law of criminal investigation, procedure and evidence by their application under the Judiciary Act 1903 (sch-sec.1-ssec.2). This is a textual pointer that some State procedural provisions can be applied by the Commonwealth through the Judiciary Act mechanism.
• Acts Interpretation Act 1901: The Acts Interpretation Act applies to the scheme as it would to a Commonwealth Act (sch-sec.11). This governs general interpretive rules.
• Offshore Petroleum and Greenhouse Gas Storage Act 2006 and Seas and Submerged Lands Act 1973: The geographic definitions for adjacent areas and baselines draw on these Acts (sch-sec.13-15, sch-sec.14). For example, the adjacent area for each State references schedule 1 to the Offshore Petroleum Act and baselines under the Seas and Submerged Lands Act (sch-sec.14-15).
• Administrative Decisions (Judicial Review) Act 1977: The ADJR Act is expressly excluded from applying to decisions taken under State law that apply to State authorities’ investigations and procedures in their areas of administrative responsibility (sch-sec.3-ssec.5).

Supremacy and construction rules

• The scheme operates to the exclusion of inconsistent Commonwealth or State law (sch-sec.3-ssec.3). Moreover, a Commonwealth or State law enacted after commencement must be construed as having effect subject to the scheme unless it expressly overrides the clause (sch-sec.3-ssec.4). That means later conflicting provisions must be read as subject to the scheme unless they expressly say otherwise.

Overlap and procedural allocation

• The scheme separates substantive and procedural law: substantive offences remain State constructs but the procedural law applicable to investigations and other acts follows the authority doing the work (sch-sec.2-3). This creates potential overlap when, for example, a Commonwealth authority investigates a State offence in an outer adjacent area: the substantive law is State-origin but the investigative procedures are Commonwealth rules. The schedule specifically contemplates that concurrent jurisdiction and concurrent responsibility may be provided for by intergovernmental agreement (sch-sec.5-ssec.2).

Constitutional constraints and precedent

• The schedule instructs that where State law is limited in effect under s 109 of the Constitution within the State, that limitation will also apply in the outer adjacent area even though the Commonwealth applies the State law there (sch-sec.2-ssec.3(b)). The schedule also alerts users to constitutional constraints on procedural rules in Commonwealth judicial proceedings and references the High Court decision in Cheatle v The Queen in that context (sch-sec.3).

Regulatory interplay and State concurrence

• The Governor-General may make regulations needed to carry the scheme into effect, but if a regulation affects the operation in the inner adjacent area for a State it requires agreement of the participating State Minister for that State (sch-sec.12). This builds a procedural gateway for State input into regulatory changes affecting inner adjacent areas.

Interaction with international law

• The AG consent provision for offences on foreign ships requires the Attorney-General to consider views of the foreign government where that flag state has jurisdiction under international law (sch-sec.7-ssec.1-2). Thus the schedule embeds a requirement to coordinate with international legal principles on flag-state jurisdiction when considering prosecutions.

Exclusions and capability limits

• The scheme does not attempt to make laws that are incapable of applying offshore (sch-sec.2-ssec.3(a)), so State laws with inherently local elements (roads, local infrastructure) will not be picked up by the schedule. Additionally, the Governor-General may exclude laws from the scheme by regulation (sch-sec.9-12).

Practical effect

• In practice the schedule creates a legal matrix where multiple legal instruments and constitutional rules intersect: State substantive criminal laws, Commonwealth procedural laws, the Judiciary Act apparatus for applying State law, other Commonwealth statutes that define offshore areas and baselines, and the ADJR Act and Constitution as interpretive constraints. Prosecutors, investigators and courts must therefore map which law applies at each stage, consult the intergovernmental agreement for jurisdictional allocation, and observe the AG consent rule where foreign-flagged vessels are involved (sch-sec.2-7; sch-sec.11-16).

Textual amendment notes included in the schedule

• The schedule itself contains a small number of internal amendment annotations. Two explicit amendment notes appear:
  • sch s 10 omitted 2025 No. 20 s 5 (the schedule notes that section sch-sec.10 was omitted by 2025 No. 20 s 5). The schedule text provided contains no separate sch-sec.10 content; the annotation records the omission.
  • sch s 14 amended 2025 No. 20 s 6 (sch-sec.14 includes the notation "sch s 14 amd 2025 No. 20 s 6"). That signals a 2025 amendment to sch-sec.14’s definition of adjacent areas; the schedule text as supplied reflects the post-amendment wording.

In-text amendment markers

• Several definitions carry "om 2025 No. 20 s 4" or similar markers in the definitions block (for example a fragment in the top definitions section referencing "Area A of the Zone of Cooperation ... sch s 1 def Area A of the Zone of Cooperation om 2025 No. 20 s 4"). This indicates amendment or omission activity affecting the definitions in 2025 under that instrument. The extract shows these annotations inline, but the schedule as supplied also carries the operative text that follows those annotations.

What the schedule itself says about subsequent laws

• The schedule instructs that a Commonwealth or State law enacted or made after the commencement of sch-sec.3 is to be construed as having effect subject to that clause unless the later law expressly overrides it (sch-sec.3-ssec.4). That is an internal priority rule rather than a chronological history, but it functions as a policy direction about future amendments and legislative interaction.

Limitations on identifying historical amendments

• The schedule extract lists these internal editorial amendment notations only; it does not provide a catalogue of prior amendments, dates of commencement for the initial schedule beyond the embedded notes, or the text of the amending instruments. Therefore the amendment history that can be reliably stated here is limited to the in-text markers present: omission of sch-sec.10 by 2025 No. 20 s 5 and amendment of sch-sec.14 by 2025 No. 20 s 6, and other inline "om" markers referencing amendment in 2025 No. 20 s 4 for definitions. The schedule’s own regulatory mechanism (sch-sec.12) also contemplates future changes by regulation (with State concurrence for inner adjacent area effects), which shapes expected amendment pathways.

Administrative amendment pathways

• The Governor-General has power to make regulations for matters required or permitted by the scheme (sch-sec.12-ssec.1). Any regulation affecting the inner adjacent area requires agreement of the participating State Minister for the relevant State (sch-sec.12-ssec.2). Those provisions point to a likely route for implementing detail-level changes without primary-legislation amendment.

Record of litigation-related references

• The only case name expressly cited inside the schedule text is Cheatle v The Queen (1993) 177 CLR 541; the schedule uses that case as an example to illustrate constitutional limits on procedural rules in Commonwealth judicial proceedings (sch-sec.3). No other cases or judicial consideration of the schedule itself are recorded in the text provided.

Summary

• The schedule’s internal annotations indicate recent amendment activity in 2025 (omissions and amendments to particular clauses). It also provides internal rules about the construction of later laws and regulatory mechanisms (sch-sec.3 and sch-sec.12), which shape how the schedule will be amended or interacted with over time. Beyond the internal notes and construction rules, the extract does not supply a comprehensive external amendment ledger or commencement history.

Direct references in the schedule

• The schedule itself contains a single explicit jurisprudential reference: Cheatle v The Queen (1993) 177 CLR 541. That case is cited in sch-sec.3 as an example demonstrating that certain procedural rules that would apply in Commonwealth judicial proceedings may be constitutionally constrained. The schedule uses that citation in an illustrative way: it says that if a State procedural rule allows a majority jury verdict but a Commonwealth judicial proceeding cannot accept such a verdict constitutionally, the court could not convict on that basis (sch-sec.3).

Interpretive implications of the cited authority

• The reference to Cheatle is used to signal that constitutional limits govern what procedural variants can be applied in Commonwealth judicial proceedings even where substantive State offences are applied in outer adjacent areas by Commonwealth law (sch-sec.3). Thus the schedule embeds the idea that application of State law offshore is subject to constitutional constraints on procedures in Commonwealth courts.

Absence of reported litigation about the schedule in the text

• The provided schedule text does not list decisions that have interpreted or applied the schedule itself, nor does it include any footnote catalogue of litigation that tests the regime. Apart from the illustrative citation to Cheatle, there are no other case names or reported determinations referenced in the supplied material. Therefore users must look to external databases for judicial treatment of the scheme; the schedule extract does not supply such a litigation history.

Potential litigation issues suggested by the text

• Although the schedule provides no case law about its own operation, it contains several provisions likely to be litigated or argued about in future prosecutions:
  • Jurisdiction and locus: the evidentiary presumption as to locus (sch-sec.4) could be challenged on evidentiary and fairness grounds.
  • Intergovernmental agreement compliance and stays: sch-sec.6 will give rise to applications for permanent stays and likely litigated questions about whether an agreement has been contravened and whether a court should enquire into compliance beyond the narrowly provided mechanism.
  • AG consent and international law: sch-sec.7’s requirement to consider flag-state views could generate legal argument about the sufficiency of consultation and the legal effect of non-consent when arrests and charges have already been laid.
  • Procedural rule conflicts and constitutional limits: sch-sec.3’s allocation of procedural law raises the prospect of constitutional litigation about what procedural rules can apply in Commonwealth judicial proceedings, with Cheatle used as an illustrative precedent in the text.

Practitioners should note that the schedule anticipates constitutional and procedural conflict points, as evidenced by the inclusion of the Cheatle reference and by explicit construction rules (sch-sec.2-3). For actual litigation history, external case law research will be required because the schedule extract does not record any decisions applying it directly.

Evidentiary presumption shifts burdens

• sch-sec.4 creates a presumption that, once an element of the offence (an act/omission/state of affairs) is proved, the allegation that it occurred in the adjacent area (inner or outer as pleaded) is taken as proved unless the defendant proves otherwise. Defence counsel should be alert that the prosecution may therefore not need to adduce separate proof of location beyond proof of the act, and must plan to obtain evidence to counter the presumption if locus is contested (sch-sec.4).

Different procedural rules depending on the authority

• sch-sec.3-ssec.2 places procedural rules in the hands of the investigating authority. If a Commonwealth agency investigates a State offence in an outer adjacent area, Commonwealth procedural law governs investigative acts; if a State agency investigates in its area of administrative responsibility, State procedural law governs. This can produce different admissibility, arrest, bail and remand consequences depending solely on which agency acts, and can complicate evidence-gathering and pre-trial strategy.

Intergovernmental agreement stay is not automatic

• Although sch-sec.6 gives effect to the intergovernmental agreement and authorises a stay when a charge is brought contrary to it, the schedule also provides that a contravention does not affect the court’s jurisdiction and that the court will not enquire into compliance with the agreement unless the Commonwealth AG or participating State Minister applies for a stay (sch-sec.6-ssec.3). Practitioners should note that the intergovernmental agreement will not be litigated by courts on the initiative of parties unless one of the specified public law actors brings an application.

AG consent mechanism: timing and consequences

• sch-sec.7 allows arrest, laying of charge, extradition proceedings and remand to proceed even in the absence of AG consent; only progression to hearing or committal for indictable offences is prevented without written AG consent where a foreign-registered ship is involved (sch-sec.7-ssec.1-3). If the AG ultimately declines consent, sch-sec.7-ssec.4 mandates a permanent stay of the proceedings. This creates a practical "arrest-and-wait" dynamic where defendants can be arrested and charged and still face a later mandatory stay, which has implications for custody decisions and bail.

Classification for procedural purposes follows the court’s law

• sch-sec.3 includes the example that an offence charged in a South Australian court will be classified as major/minor indictable or summary according to South Australian rules, even if the substantive law under which the offence arose is from another State (sch-sec.3-ssec.2 example). Defence and prosecution must plan committal, sentencing and appeal strategies on the basis of the procedural classification rules of the jurisdiction in which proceedings are commenced.

Regulatory change in inner adjacent area requires State agreement

• sch-sec.12-ssec.2 requires the participating State Minister’s agreement before the Governor-General can make a regulation that affects the scheme’s operation in the inner adjacent area. That means federal regulatory instruments affecting the inner adjacent area cannot be unilaterally imposed; coordination with States is mandatory for such regulations.

Exclusions and capability limits on substantive laws

• sch-sec.2-ssec.3(a) expressly excludes State substantive laws that are incapable of operating in an adjacent area (example: road-speed offences). Practitioners must not assume that all State offences will be enforceable offshore; an analysis of the offence’s territorial elements is required to determine applicability.

ADJR Act may not be available

• sch-sec.3-ssec.5 excludes the Administrative Decisions (Judicial Review) Act 1977 from decisions taken under State law that applies to State authorities’ acts in the State’s area of administrative responsibility. This constrains judicial review options for some administrative decisions in these areas and creates a potential procedural "gotcha" for administrative lawyers.

Construction against inconsistent laws

• sch-sec.3-ssec.3-4 states the clause operates to the exclusion of inconsistent Commonwealth or State law, and that later laws are to be construed as subject to this clause unless they expressly override it. Practitioners should carefully analyse any later Commonwealth or State enactments that might purport to alter procedural or substantive arrangements in adjacent areas; such enactments must be explicit to override the schedule’s allocation.

Overseas flag-state considerations

• The AG must take into account views of the foreign government when deciding consent under sch-sec.7. That introduces a diplomatic dimension into prosecutorial decision-making and can lengthen case progression where foreign jurisdictional concerns exist.

Indicative map is subordinate

• sch-sec.16 states the map in Appendix 1 is indicative only and that the statutory provisions prevail where inconsistent. Users should therefore rely on statutory definitions and offshore-area Acts (Offshore Petroleum Act; Seas and Submerged Lands Act) rather than treating the Appendix map as legally definitive (sch-sec.16).

Practical complexity in multi-jurisdictional investigations

• The combination of intergovernmental agreement allocations, inner-versus-outer adjacent area distinctions, and the split of substantive and procedural law can produce complex operational questions for multi-jurisdictional investigations (e.g., an incident involving Commonwealth agencies, State agencies, Australian ships and foreign ships across inner and outer adjacent areas). Those operational complexities are embedded in the scheme’s text and must be anticipated.

Checklist for prosecutors and investigators

1. Identify the location and legal classification:
   • Determine whether the conduct occurred in the inner adjacent area or outer adjacent area as defined (sch-sec.1; sch-sec.14-15). Consult the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the Seas and Submerged Lands Act 1973 for precise offshore-area boundaries referenced in sch-sec.14 and sch-sec.13.
2. Check substantive law applicability:
   • Confirm whether the relevant State substantive criminal provision is capable of operating offshore (sch-sec.2-ssec.3(a)). If the offence depends on inherently local elements (for example road or land-based infrastructure), it may be incapable of applying.
3. Determine which authority has responsibility:
   • Consult the intergovernmental agreement (once made) to see whether responsibility for the specific part of the adjacent area is State, Commonwealth or concurrent (sch-sec.5). If an agreement allocates responsibility, avoid commencing proceedings contrary to it; a contrary charge can be permanently stayed (sch-sec.6).
4. For investigations, follow applicable procedural law:
   • If a Commonwealth authority is investigating, use Commonwealth investigative and evidence laws; if a State authority is operating within its area of administrative responsibility, use State procedural rules (sch-sec.3-ssec.2). Ensure warrants, arrest powers, evidential procedures and custody mechanisms are executed under the correct legal regime.
5. For foreign-flagged ships, obtain AG consent before proceeding to hearing:
   • If the alleged offence occurred on or from a foreign ship and the flag state has jurisdiction under international law, secure written consent from the Commonwealth Attorney-General before the matter proceeds to hearing or, for indictable offences, to committal (sch-sec.7-ssec.1). Record consideration of any views expressed by the foreign government as required (sch-sec.7-ssec.2).
6. Prepare for evidentiary issues:
   • Expect that the presumption in sch-sec.4 will apply and prepare to adduce evidence that establishes the act/omission; if locus will be contested, gather locational evidence sufficient to rebut the presumption or to sustain a conviction without reliance on the presumption.
7. Monitor regulatory and agreement changes:
   • Check whether the Governor-General has made regulations affecting the scheme, and note that regulations affecting the inner adjacent area will require participation by the State Minister (sch-sec.12). Also monitor the intergovernmental agreement for allocations of responsibility or concurrent responsibility (sch-sec.5-6).

Practical steps for defence counsel

1. Challenge locus where appropriate:
   • Because of the presumption in sch-sec.4, assemble evidence (logs, AIS data, testimony, expert geolocation evidence) to rebut the allegation that the act occurred in the adjacent area as alleged.
2. Check jurisdiction and intergovernmental agreement:
   • If charges are brought, consider whether they were brought contrary to the intergovernmental agreement; note that only the Commonwealth AG or a participating State Minister may apply for a stay , the court will ordinarily not investigate compliance unless such an application is made (sch-sec.6).
3. Engage foreign-state considerations early:
   • In cases involving foreign-flagged vessels, request disclosure of any correspondence with the Commonwealth Attorney-General regarding consent and challenge any failure to consider relevant flag-state views where appropriate (sch-sec.7-ssec.2). If the AG declines consent during the process, a mandatory permanent stay will follow (sch-sec.7-ssec.4).
4. Plan for procedural variance:
   • Determine the procedural rules that applied to investigative acts and what law governs the court proceedings. Where Commonwealth procedural law governs an investigation, consider admissibility and remoteness issues that may differ from State law (sch-sec.3).

Operational guidance for maritime operators and industry

1. Know your vessel status:
   • Determine whether a vessel is an Australian ship under the schedule’s definition or a foreign ship, because charges arising on foreign-flagged ships may be subject to AG consent processes (sch-sec.1; sch-sec.7).
2. Maintain clear operational records:
   • Keep voyage logs, location data (AIS, GPS), communications records and witness statements that can be used to prove or rebut locus in the event of investigation (sch-sec.4).
3. Compliance planning for offshore operations:
   • If operations occur above or below areas described in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (sch-sec.14), include criminal compliance risk assessments that account for State substantive laws being applied offshore and the procedural differences that may arise if Commonwealth or State authorities investigate (sch-sec.2-3).

Policy and regulatory coordination for officials

1. Negotiate and publish the intergovernmental agreement:
   • Ensure the intergovernmental agreement contemplated by sch-sec.5 is negotiated to allocate responsibility clearly, identify concurrent responsibility areas if any, and set dispute resolution procedures, because charges contrary to the agreement can be stayed (sch-sec.6).
2. Establish AG consent procedures:
   • Create internal guidelines in the Attorney-General’s office to manage requests for consent under sch-sec.7, including timelines, documentation of consideration of flag-state views and records of decisions that can be disclosed in litigation or FOI contexts where appropriate.
3. Train investigators on dual regimes:
   • Provide training to Commonwealth and State investigators on the practical implications of procedural allocation under sch-sec.3 and on evidentiary standards under sch-sec.4 to reduce the risk of procedural error that might render evidence inadmissible.

Recordkeeping and inter-agency coordination

• Maintain contemporaneous records of decisions about jurisdictional allocation, AG consent requests and responses to flag-state communications, and evidence of adherence to procedural rules depending on the investigating authority. These records will be crucial if a stay application or evidentiary challenge arises (sch-sec.6-7).

In sum, complying with the schedule requires a combination of accurate spatial/legal mapping, early coordination under the intergovernmental agreement and AG consent processes, rigorous evidence-gathering to address the locus presumption, and strict adherence to the procedural law that applies to the investigating authority (sch-sec.2-7; sch-sec.3-4; sch-sec.12).