Volume 36 (2011) / Issue 6
Internet access is available on some international flights; this will become more commonplace in the future. Internet frauds abound. Already, most personal banking is performed using the Internet; it is easy to transfer funds from one account to another, including from a personal or trust account to that of a fraudster. For example, if a trustee who is both an Australian citizen and a Hong Kong permanent resident, on board an aircraft (Cathay Pacific, Virgin Atlantic, or Qantas) in international airspace flying from Hong Kong to Australia, uses a personal computer to access an Australia-based trust account and (while unauthorized) transfers money to a personal account, has the trustee committed any crime for which he/she may be arraigned in any jurisdiction? It will be argued that the answer may be 'no'. What if the trustee is flying Cathay Pacific? This is partly because the law of Hong Kong insists that Hong Kong has jurisdiction over acts committed by persons aboard Hong Kong-registered aircraft yet does not recognize Internet activity of the type indicated above as a crime if the perpetrator is in international airspace. Similarly, if the trustee is on Virgin Atlantic, the United Kingdom claims jurisdiction and holds that no crime has been committed unless a trust fund based in the home country has been plundered. However, the (Australian) Criminal Code 1995 (Cth) (hereinafter 'the Code') appears to forbid the type of fund transfer mentioned (whether the trustee is on Cathay Pacific, Virgin Atlantic, or Qantas); it thus seems at first blush that the trustee has committed a crime in Australia. The problem is that a Commonwealth prosecutor cannot (it is submitted) access the Code, because the Crimes (Aviation) Act 1991 (Cth) (promulgated earlier in time than the Code) effectively states that no non-violent act in which a person engages on an Australia-bound aircraft (Qantas or otherwise) in international airspace after takeoff from a foreign country is a crime. On such a flight, the Code is inapplicable. The maxim generalia specialibus non derogant is relevant. One solution is that concerned States should draft and sign a treaty that puts national law to one side to ensure that modern-day pirates (such as the errant trustee) are nowhere safe. Similar treaties are already in force to deal with high-seas pirates and aircraft hijackers; the meaning of piracy requires expansion in the twenty-first century.
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