Senator Bob Brown:

asked the Minister representing the Attorney-General, upon notice, on 13 March 2012:

Will the 5 000 United States of America military personnel to be rotated through the bases in northern Australia be subject to Australian laws; if not, from which laws will the personnel be exempted.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The Attorney-General has provided the following answer to the honourable senator's question:

Criminal jurisdiction over US military forces while in Australia is governed by the 1963 Agreement concerning the Status of United States Forces in Australia (SOFA) and the Defence (Visiting Forces) Act 1963 (DVFA). The DVFA is administered by the Attorney-General's Department.

Under the SOFA, US troops stationed in Australia are subject to both Australian law and United States law. Where US personnel undertake conduct that amounts to an offence only under Australian law, Australia will have an exclusive right to exercise jurisdiction in relation to that conduct. In the event that US personnel are alleged to have committed an offence under the laws of both countries, Australia will have the primary right to exercise jurisdiction over the conduct, unless the alleged conduct:

In these exceptional cases, the US will have primary right to exercise jurisdiction. If the US waives its right to exercise jurisdiction Australia may exercise jurisdiction over the alleged offence.

The DVFA implements the criminal jurisdiction obligations in the SOFA into Australian law. In particular, it provides that in circumstances where charges are laid by Australian authorities, it is for Australian courts to determine whether the alleged offence occurred in the course of 'official duties' (and as such whether the US has primary right to exercise jurisdiction in respect of an offence under US law). The DVFA provides that the Attorney-General can issue a certificate stating that the conduct was in the course of official duties. This certificate is sufficient evidence of that fact unless the contrary is proved (subsection 18(4)).