Bills Digest no. 48 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jonathan Mills
Law and Bills Digest Section
12 November 2015
Contents
Purpose
of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Concluding comments
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.
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.
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.
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]
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]
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.
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.
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.
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]
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]
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]
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.
[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).
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