Dealing With International Crime (HSC SSCE Legal Studies): Revision Notes

Dealing With International Crime

Introduction

Effectively addressing international crime requires a combined approach that integrates both domestic and international measures. The strategies used differ depending on whether the focus is on crimes against the international community or transnational crimes. Successful enforcement depends on cooperation between countries, as criminal activity increasingly crosses national borders.

Domestic measures

Jurisdictional limitations

Australia faces significant constraints when responding to international crime due to jurisdictional boundaries. These limitations include:

• Australian law enforcement cannot operate in foreign countries without express permission from the host nation
• Australian courts lack jurisdiction over crimes committed under foreign laws in other territories
• Australian parliaments cannot legislate on the laws of other countries

Without cooperation from foreign governments, Australia's legal system has limited capacity to respond to international crimes. However, specific exceptions exist in certain circumstances:

• Where express permission has been granted for Australian law enforcement presence (such as crisis relief operations)
• Where parliament legislates on actions involving Australian residents abroad (for example, child sex tourism laws)
• Where courts claim rare jurisdiction under international law rules (such as universal jurisdiction for certain grave crimes)

Despite these limitations, Australia has implemented numerous important domestic measures to combat international crime.

Crimes against the international community

Rome Statute ratification

The most significant development in Australia's approach to crimes against the international community was signing and ratifying the Rome Statute. Australia demonstrated strong commitment by becoming one of the first signatories on $9$ December $1998$, and ratified the statute on $1$ July $2002$ (the date the statute entered into force internationally).

Legislative framework

Prior to the Rome Statute, Australia had already criminalised several recognised crimes against the international community through:

• War Crimes Act 1945 (Cth) – addressed war crimes from the Second World War period
• Geneva Conventions Act 1957 (Cth) – outlawed recognised war crimes listed in the Geneva Conventions

To ensure compliance with the Rome Statute, the federal government passed two key pieces of legislation coinciding with ratification:

International Criminal Court Act 2002 (Cth) and International Criminal Court (Consequential Amendments) Act 2002 (Cth). This legislation introduced:

• Procedural amendments to support ICC cooperation
• A new section to the Commonwealth Criminal Code: Chapter 8 – Offences against Humanity and Related Offences
• Domestic offences in Australia for all crimes listed in the Rome Statute
• Integration of existing offences (such as war crimes from the Geneva Conventions Act $1957$)

Australia's role as state party to ICC

Australia actively participates in ICC operations by:

• Engaging in discussions among state parties
• Contributing to court administration
• Meeting reporting requirements (the Commonwealth Attorney-General must report annually on ICC operations and impacts on Australia's legal system)

According to the Attorney-General's Department report for $2008$–$09$, there have been no Australian prosecutions under the Act, and the ICC has had "no discernible impact" on Australia's legal system to date.

Transnational crime

The Australian Government has significantly expanded efforts to combat rising transnational crimes through multiple agencies and measures.

Australian Federal Police (AFP)

Role expansion: The AFP's international role has grown considerably with the rise in transnational crime, including:

• Posts in more than $25$ countries worldwide
• Deployment of Australian police for international capacity-building
• Monitoring and peacekeeping operations
• Specialist training for international law enforcement agencies to prevent transnational crimes at source
• Encouraging greater international cooperation

Key international operations:

• Child protection – combating child exploitation networks
• Terrorism operations – investigating and preventing terrorist activities
• Human trafficking – stopping trafficking networks
• Drug operations – disrupting international drug trade

Jakarta Centre for Law Enforcement Cooperation: Established by the AFP to enhance regional law enforcement skills for dealing with transnational crime. Over $5000$ participants have completed programmes covering skills including:

• Criminal intelligence
• Forensics
• Financial investigations

The AFP continues developing relationships with regional bodies such as the South East Asian Regional Center for Counter-Terrorism (Kuala Lumpur) and the International Law Enforcement Academy (Bangkok).

Commonwealth Attorney-General's Department

The Attorney-General's Department plays varied but crucial roles regarding transnational crimes:

• Reports and provides advice on Australia's compliance with international obligations
• Oversees operation of legislation relating to transnational crimes
• Provides advice on implementation of laws
• Provides information to the public and parliament on Australia's efforts against transnational crime

Australian Crime Commission (ACC)

The Australian Crime Commission (ACC) is a national statutory body established under the Australian Crime Commission Act $2002$ (Cth) to combat serious and organised crime. The ACC investigates matters of national concern and coordinates with international law enforcement agencies, delivering specialist capabilities to assist in investigating and analysing intelligence concerning national and transnational crimes.

Key focus areas:

According to the ACC's $2009$ report Organised Crime in Australia, most significant organised crime groups operating in Australia have an international dimension. The ACC specifically investigates:

• South East Asian organised crime (primary point of heroin into Australia)
• Money laundering and tax fraud
• Identity crime
• Human trafficking for sexual exploitation

Australian Customs and Border Protection Service

This national agency is responsible for the security and integrity of Australian borders. The agency works closely with other government and international agencies to detect and deter unlawful movement of goods or people across Australia's borders.

Australian High Tech Crime Centre (AHTCC)

Created in $2002$, the Australian High Tech Crime Centre (AHTCC) coordinates all Australian law enforcement authorities in fighting serious crimes involving technology. Now part of the AFP's High Tech Crime Operations, its main functions include:

• Coordinating a national approach to serious, complex and multi-jurisdictional crimes
• Assisting all Australian jurisdictions in dealing with high-tech crime

The AHTCC has representatives from every Australian jurisdiction and receives funding from all states and territories.

State bodies

Numerous state and territory bodies investigate transnational crimes due to their cross-jurisdictional nature. In NSW, these include:

• Independent Commission Against Corruption (ICAC)
• NSW Crime Commission
• Police Integrity Commission
• Divisions within the NSW Police Service

Human trafficking: a case study

Human trafficking represents a very serious transnational crime issue. It involves moving people by force, coercion or deceptive means, often trafficking women and children into the sex industry. The global trade in people is complex and difficult to eradicate, with estimates suggesting between $500{,}000$ to $4{,}000{,}000$ victims annually. In the last decade, over $250$ matters of trafficking in Australia were referred to the AFP.

Australian Government response

Since $2003$, the Australian Government has introduced numerous measures to combat human trafficking:

Legislative measures: Various offences related to human trafficking are found in the Criminal Code Act 1995 (Cth), including:

• Slavery or any commercial transaction involving a slave
• Sexual servitude or deceptive recruiting
• Trafficking in persons and forced labour

Similar legislation has been passed in Australian states and territories.

Financial commitment: About $$60$ million dedicated from $2003$ to tackling the problem through numerous government bodies.

International measures

International measures aimed at tackling international crime can be divided into three main categories:

1. Cooperation between governments through international treaties and international organisations targeted at specific types of international crime
2. International courts and tribunals to deal with enforcement of international crimes
3. Cooperation and intelligence sharing between national and sub-national agencies to tackle trans-border crime problems

Crimes against the international community

Most international efforts to prevent or prosecute crimes against the international community have involved governments showing continuing commitment and close cooperation in developing international treaties such as the Geneva Conventions and the Rome Statute of the International Criminal Court. These crimes are universally recognised and condemned by the international community.

Courts and tribunals

Prior to the ICC's establishment, crimes were usually dealt with domestically by courts or military tribunals on a case-by-case basis. However, throughout the $20$th century, various ad hoc international tribunals were established to prosecute atrocities relating to particular events:

Historical examples:

• Nuremberg trials – prosecuted crimes against humanity and war crimes relating to the Second World War
• Tokyo trials – prosecuted similar crimes in relation to Japan's wartime conduct
• International Criminal Tribunal for the former Yugoslavia (ICTY) – established in $1993$ by the UN Security Council to investigate and prosecute individuals for war crimes, crimes against humanity and genocide committed during the Yugoslav conflict between $1999$ and $2001$

International Criminal Court operations

Since $2002$, the ICC has launched investigations and prosecutions into numerous recent events. By $2010$, the following situations had been referred to the ICC:

• The situation in Uganda
• The situation in the Democratic Republic of the Congo
• The situation in Darfur, Sudan
• The situation in the Central African Republic
• The situation in the Republic of Kenya

Some state parties have requested investigations into internal matters, and at least one matter has been referred to the court by the UN Security Council.

Extradition treaties

Governance: International extradition is generally governed by a series of bilateral agreements (agreements between two countries). Australia currently has extradition agreements with approximately $130$ countries. However, some international agreements have their own specific extradition arrangements, including:

• Rome Statute of the International Criminal Court
• Genocide Conventions

Australia has received three extradition requests from the ICTY against people residing in Australia accused of committing war crimes.

Australian legislation: In Australia, extradition is governed by the Extradition Act 1988 (Cth). The Act establishes criteria that must be met before extradition will be granted:

• It must be determined that the accused has a case to answer on the evidence
• The accused must be able to receive a fair trial in the state to which they are being returned
• It must be shown that the offence is a crime in both Australia and the target country (principle of dual criminality)

Transnational crimes

International Criminal Police Organization (INTERPOL)

Six priority crime areas:

1. Drugs and criminal organisations
2. Public safety and terrorism
3. Financial and high-tech crime
4. Trafficking in human beings
5. Fugitives
6. Corruption

Operations: At any given time, INTERPOL engages in numerous worldwide operations investigating and providing advice to national law enforcement agencies on transnational crimes, including:

• Targeting organised crime in Asia and Eurasia
• International counterfeiting and money laundering
• Trafficking in arms and drugs
• International terrorism

United Nations Convention against Transnational Organized Crime

The United Nations Convention against Transnational Organized Crime is regarded as the main international instrument in the fight against transnational organised crime. It began operation in $2000$ and has three protocols that countries become party to once they sign the convention:

Three protocols:

1. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
2. Protocol against the Smuggling of Migrants by Land, Air and Sea
3. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition

State obligations: Signature states commit to:

• Ensuring domestic criminal offences regulate participation in organised crimes, money laundering and other aspects of corruption
• Adopting broad changes to extradition procedures
• Providing "mutual" legal assistance and cooperation between law enforcement agencies
• Upgrading capacity of national authorities to deal with organised transnational crime networks

Pacific Transnational Crime Network (PTCN)

The Pacific Transnational Crime Network (PTCN) was formed in July $2002$ as a response to increases in regional transnational crime. It was an AFP initiative recognising that strong relationships were needed between Australia and its Pacific neighbours to combat transnational crime. The network's headquarters are located at the Pacific Transnational Crime Coordination Centre in Apia, Samoa.

Purpose: The PTCN, working with the AFP, has created a regional network of transnational crime units in Pacific states focusing on combating cross-border criminal activity such as:

• Drugs and arms smuggling
• Money laundering

Functions: The PTCN manages, coordinates and enhances law enforcement intelligence across the region. Pacific countries have been identified as particularly vulnerable to threats from transnational crime, especially from organised crime groups. Pacific nations may have fewer resources to tackle law enforcement or to detect and prosecute such crimes.

Support provided:

• Technical assistance
• Training
• Resource sharing
• Strengthening the rule of law in Pacific countries

Exam guidance

When analysing Australia's response to international crime, examiners typically look for:

Remember!