sch-sec.3Application of laws of criminal investigation, procedure and evidence

sch-sec.3 Application of laws of criminal investigation, procedure and evidence

In this clause— act includes an omission. area of administrative responsibility for a particular State is— the area of the State; and the inner adjacent area for the State; and other parts of the adjacent area in which the State has, under the intergovernmental agreement, responsibility (which may be either exclusive or concurrent) for administering criminal justice. authority includes an agent or official. Commonwealth judicial proceeding means— a judicial proceeding related to a maritime offence— initiated by an authority of the Commonwealth; or for the conduct of which an authority of the Commonwealth has assumed responsibility; or a judicial proceeding about an investigation, procedure or act by an authority of the Commonwealth in relation to a maritime offence. judicial proceeding means— a proceeding in a court (whether between parties or not) or a proceeding incidental to or connected with a proceeding in a court; or the laying of a charge; or the preliminary examination of a charge of an indictable offence or a proceeding incidental to or connected with the preliminary examination of a charge of an indictable offence. preliminary examination of a charge of an indictable offence means a proceeding to decide whether the defendant should be committed for trial or, if the defendant pleads guilty to the charge, to commit the defendant for sentence or trial. State judicial proceeding means— a judicial proceeding related to a maritime offence— initiated by an authority of a State; or for the conduct of which an authority of a State has assumed responsibility; or a judicial proceeding about an investigation, procedure or act by an authority of a State in relation to a maritime offence. The laws of criminal investigation, procedure and evidence of the Commonwealth and the States apply to maritime offences as follows— the law of the Commonwealth applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the Commonwealth; and the law of a State applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the State operating within the area of administrative responsibility for the relevant State; and in a Commonwealth judicial proceeding the law of the Commonwealth applies and in a State judicial proceeding, the law of the State in which the proceeding was commenced applies (subject to the Constitution) irrespective of whether— the maritime offence arises under the law of the State in which the proceeding was commenced or another State; or the substantive criminal law against which the offence was committed applies in the relevant part of the adjacent area under the law of the State in which the proceeding was commenced, another State or the Commonwealth. Suppose that a person is charged by a State authority with a maritime offence on the assumption that the offence was committed in the inner adjacent area for the State but the court is satisfied in the course of the proceedings that the acts alleged against the defendant took place in the outer adjacent area for the State. In this case, the court could continue with the proceedings under the procedural laws of the State. However, the court could not (for example) convict the defendant on the basis of a majority verdict of a jury (because to do so would be contrary to the Commonwealth Constitution—see Cheatle v. The Queen ). (1993) 177 CLR 541 Suppose that a person is charged by a State authority in a South Australian court with a maritime offence alleged to have been committed in the adjacent area for Western Australia. For the purposes of the proceedings, the offence would be classified as a major indictable, minor indictable or summary offence according to the South Australian rules and not by reference to its classification under the law of Western Australia or the Commonwealth. This clause operates to the exclusion of any Commonwealth or State law that is inconsistent with it. A Commonwealth or State law enacted or made after the commencement of this clause is to be construed as having effect subject to this clause, unless the law expressly overrides this clause. The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) does not apply to a decision taken under a State law that applies to investigations, procedures and acts by authorities of the State under paragraph (b) of subclause (2). (sch-sec.3-ssec.1) In this clause— act includes an omission. area of administrative responsibility for a particular State is— the area of the State; and the inner adjacent area for the State; and other parts of the adjacent area in which the State has, under the intergovernmental agreement, responsibility (which may be either exclusive or concurrent) for administering criminal justice. authority includes an agent or official. Commonwealth judicial proceeding means— a judicial proceeding related to a maritime offence— initiated by an authority of the Commonwealth; or for the conduct of which an authority of the Commonwealth has assumed responsibility; or a judicial proceeding about an investigation, procedure or act by an authority of the Commonwealth in relation to a maritime offence. judicial proceeding means— a proceeding in a court (whether between parties or not) or a proceeding incidental to or connected with a proceeding in a court; or the laying of a charge; or the preliminary examination of a charge of an indictable offence or a proceeding incidental to or connected with the preliminary examination of a charge of an indictable offence. preliminary examination of a charge of an indictable offence means a proceeding to decide whether the defendant should be committed for trial or, if the defendant pleads guilty to the charge, to commit the defendant for sentence or trial. State judicial proceeding means— a judicial proceeding related to a maritime offence— initiated by an authority of a State; or for the conduct of which an authority of a State has assumed responsibility; or a judicial proceeding about an investigation, procedure or act by an authority of a State in relation to a maritime offence. (sch-sec.3-ssec.2) The laws of criminal investigation, procedure and evidence of the Commonwealth and the States apply to maritime offences as follows— the law of the Commonwealth applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the Commonwealth; and the law of a State applies to investigations, procedures and acts (other than judicial proceedings) by authorities of the State operating within the area of administrative responsibility for the relevant State; and in a Commonwealth judicial proceeding the law of the Commonwealth applies and in a State judicial proceeding, the law of the State in which the proceeding was commenced applies (subject to the Constitution) irrespective of whether— the maritime offence arises under the law of the State in which the proceeding was commenced or another State; or the substantive criminal law against which the offence was committed applies in the relevant part of the adjacent area under the law of the State in which the proceeding was commenced, another State or the Commonwealth. Suppose that a person is charged by a State authority with a maritime offence on the assumption that the offence was committed in the inner adjacent area for the State but the court is satisfied in the course of the proceedings that the acts alleged against the defendant took place in the outer adjacent area for the State. In this case, the court could continue with the proceedings under the procedural laws of the State. However, the court could not (for example) convict the defendant on the basis of a majority verdict of a jury (because to do so would be contrary to the Commonwealth Constitution—see Cheatle v. The Queen ). (1993) 177 CLR 541 Suppose that a person is charged by a State authority in a South Australian court with a maritime offence alleged to have been committed in the adjacent area for Western Australia. For the purposes of the proceedings, the offence would be classified as a major indictable, minor indictable or summary offence according to the South Australian rules and not by reference to its classification under the law of Western Australia or the Commonwealth. (sch-sec.3-ssec.3) This clause operates to the exclusion of any Commonwealth or State law that is inconsistent with it. (sch-sec.3-ssec.4) A Commonwealth or State law enacted or made after the commencement of this clause is to be construed as having effect subject to this clause, unless the law expressly overrides this clause. (sch-sec.3-ssec.5) The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) does not apply to a decision taken under a State law that applies to investigations, procedures and acts by authorities of the State under paragraph (b) of subclause (2).