Piracy and the use of Force in Australia

Abstract

The Commanding Officer (CO) of a Royal Australian Navy (RAN) warship sent to apprehend pirates might be forgiven for thinking that piracy would be a fairly settled issue in law. The ancient character of the crime suggests that there has been ample opportunity for the law to respond to it, and international law has had a reasonably comprehensive approach to piracy for at least a century. Australia has diligently ratified and implemented all of the relevant obligations. The problem is that this is all Australia has done. The authority to use force at sea to apprehend pirates under Australian law is quite limited, most likely due to the fact there has not been an Australian piracy case since the early 19th century. The relevant Australian legislation is effectively a reproduction of the 'United Nations Law of the Sea Convention 1982' (LOSC), an orthodox international law instrument concerning obligations between states which characteristically has little provision for the detail of law enforcement. Consequently, the provisions under the 'Crimes Act 1914' for arrest of pirates and seizure of their vessels and evidence are fairly bald; they stand in contrast to the elaborate machinery in the 'Customs Act 1901' or the 'Fisheries Management Act 1991' for enforcing the law at sea. Another issue is that while the international law on piracy may be fairly well developed, the distinct facts of the recent Somali piracy phenomenon complicate matters for Australian warships. Although there are United Nations (UN) Security Council resolutions authorising the same action in Somalia's territorial sea as could be taken on the high seas, Australian piracy provisions in the 'Crimes Act' do not operate in foreign territorial seas. Additionally, given the limited prospects for piracy prosecutions in Somali courts, it could be quite possible that Australia would have to hold pirates and their vessels for at least some time on behalf of the prosecution authorities of a third country. There is no provision in the 'Crimes Act', however, for such action. Where there is no authority under the 'Crimes Act', any enforcement action would have to rely upon the executive power. This paper will consider the limited 'Crimes Act' provisions for piracy before addressing the extent to which the Commonwealth can rely upon executive power to conduct counter-piracy operations off Somalia. It will conclude that, despite the extent of international law on piracy, Australian law on the use of force against pirates is perilously thin.