BILLS DIGEST NO. 48, 2015–16              12 November 2015

Crimes Legislation Amendment (Harming Australians) Bill 2015

Jonathan Mills
Law and Bills Digest Section 

Date introduced: 15 October 2015

House:  Senate

Portfolio: Attorney-General and Senator Xenophon

Commencement: Sections 1 to 3 will commence on Royal Assent. Schedule 1 will commence the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Harming Australians) Bill 2015 (the Bill) is to amend the Criminal Code Act 1995 (the Criminal Code)[1] to extend the existing retrospective application of the offences of murder and manslaughter of Australians overseas to apply to offences occurring prior to 1 October 2002.

Structure of the Bill

The Bill contains one schedule to amend Division 115 of the Criminal Code. Items 1 to 7 extend the retrospectivity of the existing offence for murder of Australians overseas, as well as providing certain safeguards for the application of retrospectivity. Items 8 to 14 perform the same function for the existing offence of manslaughter of Australians overseas.

Background

In 2002, following the Bali bombings, Division 115 of the Criminal Code was enacted by the Criminal Code Amendment (Offences Against Australians) Act 2002. This Division provides offences and penalties for the murder or manslaughter of an Australian citizen or resident of Australia. The division applies to deaths caused by conduct occurring outside Australia. The amending Act received Royal Assent on 14 November 2002. However, the offences were retrospective, commencing on 1 October 2002, in order to apply to the Bali bombings[2] of 12 October 2002.

In 2013, Senator Xenophon introduced the Criminal Code Amendment (Harming Australians) Bill 2013 (2013 Bill)[3] with the intention of extending the application of these offences to conduct that occurred before 1 October 2002. In his second reading speech for the Bill, Senator Xenophon stated:

I have been approached by a family who have been directly impacted by the limited time period that applies to the provisions under Division 115 of the Act. Their family member was brutally murdered before the 1 October 2002 date, and the case has never been resolved.[4]

The 2013 Bill contained provisions to extend the date of the application of the Division 115 offences, with no additional safeguards relating to double jeopardy or the retrospective application of the offences. Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR)[5], discussed in detail below, require that no one should be subject to criminal sanction for conduct that was not an offence at the time it occurred, and that any penalty should be no heavier than the one that was applicable at the time.

In August 2015 the Senate Legal and Constitutional Affairs Legislation Committee tabled its report on the 2013 Bill.[6] The report highlighted concerns rasied in submissions relating to retrospectivity and implementation of the offences, and recommended that further consultation be conducted on the Bill.

This Bill has the same stated aim as the 2013 Bill, but contains additional safeguards which appear to address many of the concerns detailed in the report. The issues raised in the report and the submissions provided to the inquiry will be discussed below.

Minister Christopher Pyne and Senator Nick Xenophon held a joint press conference to announce the Bill. During this press conference mention was made of the support provided by various people for the proposed amendments. Amongst those mentioned were the Bradshaws, the family of a woman murdered in Brunei in 1994 and whose killer has not been charged, Senator George Brandis as Attorney-General, as well as the efforts of an investigative journalist and the South Australian Victims’ Rights Commissioner Michael O’Connor.[7]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has not been referred to this Committee.

However, as discussed above, the 2013 Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and the final report was tabled in August 2015.[8] The concerns raised in submissions and the report, and how they relate to the present Bill, are discussed under the heading ‘Key issues and provisions’ below.

Senate Standing Committee for the Scrutiny of Bills

This Committee reported on this Bill on 11 November 2015.[9] The Committee noted the retrospective elements in the proposed offences, as well as the safeguards provided. In light of the safeguards and the ‘universally’ recognised criminal nature of the conduct, the Committee left the question of the appropriateness of the proposed approach to the Senate as a whole.

The Committee also commented on the absolute liability applicable to the new offences due to the requirement that the conduct must have constituted an offence against the law of the foreign country. The Committee was concerned that the explanatory material did not justify this, but concluded:

Although the explanatory materials do not expressly include a justification for the proposed approach, absolute liability is arguably not inappropriate as the element is essentially a precondition of an offence and the state of mind of the defendant does not seem relevant to it. The new element to which absolute liability applies is thus arguably analogous to a jurisdictional element.

The Committee left the question of the appropriateness of this approach to the Senate as a whole.[10]

Policy position of non-government parties/independents

The Bill is co-sponsored by the Government and Senator Xenophon.

The 2013 Bill was not debated so the views of other senators and members are not recorded in Hansard.[11]

No other parties or independents have publicly stated a policy position.

Position of major interest groups

At the time of writing no interest groups had commented on this Bill.

While several submissions were received in response to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the 2013 Bill—that pointed to potential human rights and implementation problems—the safeguards added to this Bill appear to address the substantive issues raised, as discussed below.

Financial implications

The Explanatory Memorandum states that there are no direct financial implications arising from the changes proposed in the Bill, and that where a prosecution or extradition is undertaken the costs would be met within existing agency budgets.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[12]

The impact of the proposed offences and safeguards on the prohibition against retrospective criminal offences in Article 15(1) of the ICCPR are discussed under the heading ‘Key issues and provisions’ below.

Parliamentary Joint Committee on Human Rights

As of the date of writing the Parliamentary Joint Committee on Human Rights (PJCHR) has not reported on this Bill.

In considering the 2013 Bill, the PJCHR noted that the retrospectivity of the proposed measures may infringe the prohibition on retrospective criminal laws.[13]

Key issues and provisions

Retrospectivity

Several submissions to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the 2013 Bill claimed that the provisions of that Bill could violate Australia’s obligations under Article 15 of the ICCPR.[14] Specifically, Article 15(1) provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.[15]

In addressing the issue of retrospectivity in his second reading speech for the 2013 Bill, Senator Xenophon noted that Division 115 provided some initial retrospectivity when it was enacted in 2002, and also stated:

… this bill deals with crimes of murder, manslaughter and causing serious harm, which already exist in all other jurisdictions. As such, this bill does not establish a crime retrospectively, but instead extends the capacity for involvement of Australian law enforcement that this Division already provides.[16]

However, submissions pointed out that these offences are not uniform across jurisdictions, and laws such as those relating to assisted euthanasia could be examples of situations in which the Bill would act to retrospectively criminalise conduct that was legal at the time it was engaged in overseas.[17]

The present Bill includes safeguards aimed at ensuring that such retrospectivity is avoided and the ICCPR obligations are met. In particular, items 2 and 9 introduce proposed paragraphs 115.1(1)(e) and 115.2(1)(e) which provide that conduct engaged in before 1 October 2002 can form the basis of an offence under Division 115 only where that conduct constituted an offence under the law of the foreign country at the time the conduct occurred.

In line with the obligation imposed by the second sentence of Article 15(1) to not retrospectively increase the severity of penalties,[18] items 5 and 12 insert proposed subsections 115.1(1A) and (1B) and 115.2(1A) and (1B) respectively. These provide that any term of imprisonment imposed on conviction must not exceed the custodial penalties applicable to the offence in the foreign country at the time the offence occurred. These provisions apply to penalties up to a maximum of life imprisonment for murder and 25 years for manslaughter.

Where longer or non-custodial penalties were applicable in the foreign country at the time the offence occurred, the proposed paragraphs 115.1(1) (1A)(b), and 115.2(1) (1A)(b) provide that the penalties available are a maximum of life imprisonment or 25 years, respectively. The Explanatory Memorandum states that this is because, in the cases of serious offences such as murder and manslaughter:

… (w)here a foreign law would impose a non-custodial punishment, particularly those that would not be consistent with other international human rights obligations, such as the prohibition on torture or cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR, these punishments will not be considered lower penalties for the purpose of these offences.[19]

Difficulties bringing proceedings under the proposed provisions

The Senate Legal and Constitutional Affairs Legislation Committee Report also noted concerns that there may have been difficulties in bringing proceedings under the 2013 Bill due to the fact that it could apply to conduct that did not constitute an offence in the other country at the time the conduct occurred.[20] The safeguards introduced by items 2 and 9 effectively address this by limiting the operation of the extended provisions to offences existing, at the time, in the foreign country. This should satisfy the requirement for dual criminality found in most extradition arrangements. This requirement means that extradition is generally only possible for conduct that was an offence in both jurisdictions at the time it occurred.

Nevertheless, as the Attorney-General’s Department stated in their submission to the inquiry into the 2013 Bill, the offences do not provide Australian agencies with powers to operate outside Australia, and there will remain a need for Australian authorities to secure the cooperation of agencies in the foreign country for investigation and/or extradition purposes as required in each individual case.[21]

Other provisions

Double jeopardy

Items 7 and 14 introduce proposed subsections 115.1(3) and 115.2(3) respectively to ensure that a person cannot be convicted of an offence under Division 115 where the conduct occurred before 1 October 2002 and that person has already been convicted or acquitted of a related offence in a foreign country. 

This protection is in line with Australia’s obligations under the double jeopardy protection required by Article 14(7) of the ICCPR.[22]

Concluding comments

The Bill contains safeguards intended to largely overcome the original concerns raised about the 2013 Bill. There remains an inevitable element of retrospectivity regarding the extension of Australian jurisdiction. However this is mitigated to a large extent by the safeguards limiting the proposed extended application to offences that existed at the time in the foreign country and restricting the maximum terms of imprisonment available for the offence to those in the foreign country at the time the conduct occurred.

While the proposed amendments would allow Australian law enforcement authorities to pursue the particular case that instigated this Bill and the previous 2013 Bill, the proposed laws would also apply to any other similar cases that had occurred at any time prior to 1 October 2002.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Criminal Code Act 1995 (Criminal Code), accessed 6 November 2015.

[2]               S Sherlock, The Bali bombing: what it means for Indonesia, current issues brief, 4, 2002–03, Department of the Parliamentary Library, Canberra, 22 October 2002, accessed 6 November 2015.

[3].              Parliament of Australia, ‘Criminal Code Amendment (Harming Australians) Bill 2013 homepage’, Australian parliament website, accessed 5 November 2015.

[4].              N Xenophon, ‘Second reading speech: Criminal Code Amendment (Harming Australians) Bill 2013’, Senate, Debates, 11 December 2013, pp. 1488–1489, accessed 5 November 2015.

[5].              International Covenant on Civil and Political Rights, 16 December 1966, ATS [1980] No. 23 (entered into force for Australia (except Article 41) 13 November 1980, Article 41 came into force generally 28 March 1979 and for Australia 28 January 1993), accessed 5 November 2015.

[6].              Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code Amendment (Harming Australians) Bill 2013, The Senate, Canberra, August 2015, accessed 4 November 2015.

[7].              C Pyne and N Xenophon, Joint press conference: Canberra: the Crime Legislation Amendment (Harming Australians) Bill, transcript, 15 October 2015, accessed 4 November 2015.

[8].              Senate Legal and Constitutional Affairs Legislation Committee, op. cit.

[9].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 12, 2015, The Senate, 11 November 2015.

[10].              Ibid., p. 6.

[11].              Parliament of Australia, ‘Criminal Code Amendment (Harming Australians) Bill 2013 homepage’, Australian Parliament website, accessed 12  November 2015

[12].              Explanatory Memorandum, Crimes legislation Amendment (Harming Australians) Bill 2015, p. 3, accessed 5 November 2015.

[13].              Parliamentary Joint Committee on Human Rights, Second report of the 44th Parliament, February 2014, pp. 31–35; Parliamentary Joint Committee on Human Rights, Fourth report of the 44th Parliament, March 2014, pp. 39–46, both accessed 5 November 2015. 

[14].              International Covenant on Civil and Political Rights, op. cit.

[15].              Ibid, Article 15(1).

[16].              N Xenophon, ‘Second reading speech: Criminal Code Amendment (Harming Australians) Bill 2013’, op. cit.

[17].              Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 7.

[18].              International Covenant on Civil and Political Rights, op. cit., Article 15(1).

[19].              Explanatory Memorandum, p. 5.

[20].              Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 9.

[21].              Attorney-General’s Department, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code Amendment (Harming Australians) Bill 2013, January 2014, accessed 2 November 2015.

[22].              International Covenant on Civil and Political Rights, op. cit., Article 14(7).