CHAPTER 2
Key issues
2.1
Submitters raised several issues in relation to the Bill. Of principal
interest was whether the amendments introduced by the Bill are consistent with
the stated purpose of the current offences in Part 5.4 (Division 115) of the
Criminal Code, and the justification for the retrospective application of
offences proposed by the Bill.
Altering the purpose of the offences in Part 5.4 of the Criminal Code
2.2
The Attorney-General's Department (the department) noted that the
offences in Part 5.4 were introduced in response to the 2002 Bali bombings in
which 88 Australians were killed, in order to ensure that 'there are no
loopholes in terms of prosecuting terrorist acts involving murder overseas' and
'provide a prosecution option where perpetrators are unable to be prosecuted
under the terrorism legislation'.[1]
2.3
The Rule of Law Institute Australia (RoLIA) argued that the Bill 'departs
significantly' from this original purpose, broadening it to operate as a
'catch-all for any relevant act committed at any point in time in the past
which has harmed an Australian', rather than targeting terrorist acts more
specifically.[2]
RoLIA suggested that, in the context of the Attorney-General authorising
proceedings to be brought under Division 115, the new broader purpose of the
Division could be inconsistent with other factors which the Attorney-General
would necessarily have to consider.[3]
Retrospectivity of the proposed amendments
2.4
Submitters discussed several points in relation to the proposed extension
of the retrospective application of the offences in Division 115 of the
Criminal Code, including: whether the original legislation that introduced
these offences into the Criminal Code constitutes a precedent for extending
retrospectivity through the Bill; whether this aspect of the Bill is consistent
with Australia's obligations under international law; and the role of the
Attorney-General in bringing proceedings under Division 115.
Precedent formed by the 2002
legislation
2.5
Senator Xenophon's second reading speech argued that the original Act
that introduced Division 115 into the Criminal Code forms a precedent for the amendments
proposed in the Bill:
[I]n response to concerns regarding the retrospectivity of
criminal law, it is important to note that the original bill that established
these provisions, the Criminal Code Amendment (Offences Against Australians)
Bill 2002, was in itself retrospective. The Bill itself was assented to on
14 November 2002, but the provisions came into effect from 1 October 2002.
Presumably this was to ensure the Bali Bombings, which occurred on 12 October
2002, were covered by the provisions.
As such, in response to criticisms of retrospectivity and
changing the law to suit a particular case, the bill that established Division
115 in 2002 forms the precedent for the measures in this bill.[4]
2.6
The department noted that the initial retrospectivity in the Bill was
designed specifically to cover the Bali bombings:
[W]hen the offences in Part 5.4 were introduced, a 45-day
retrospective application was permitted to cover the circumstances of the Bali
bombings...These offences were not intended to have any further retrospective
effect to cover other significant terrorist events involving Australians,
including, for example, the September 11 bombings.[5]
Consistency with Australia's
international law obligations
2.7
Submitters raised several issues in relation to the Bill's consistency
with Australia's obligations under article 15 of the International Covenant on
Civil and Political Rights (ICCPR).
2.8
The Bill's Statement of Compatibility with Human Rights states that the
Bill does not or breach the prohibition on retrospective criminal laws, noting:
The provisions in the Bill relate to the crimes of murder,
manslaughter and serious harm to another person, all of which already exist in
other jurisdictions. As such, the Bill does not introduce retrospective crimes,
but instead extends the capacity for involvement of Australian law enforcement
that this Division already provides.[6]
2.9
Professor Ben Saul and Ms Kathleen Heath of the Sydney Centre for
International Law disagreed, arguing that the Bill does violate the prohibition
on retrospective criminal laws:
The effect of Article 15 [of the ICCPR] is to require
criminal liabilities in every national legal system to be prospectively
knowable, or notified in advance, to those subject [to] those liabilities. The
sole exception concerns international crimes. Article 15 does not, and was not
intended to, permit one national jurisdiction to retrospectively punish conduct
on the basis that it was already criminalised in a foreign national
jurisdiction but not locally.
...The reference in Article 15(1) to 'national' law means that
each national legal system must prospectively prescribe the scope of criminal
liabilities. It does not mean, and has never been understood to mean in the
jurisprudence, that a national law is not retrospective as long as some other
nation's law already criminalises that conduct. This is obvious from the text,
drafting history, and subsequent interpretation of Article 15(1).[7]
2.10
Professor Saul and Ms Heath also explained that the offences modified by
the Bill are not necessarily uniform across jurisdictions:
Further, the offences in Division 115, including 'murder', 'manslaughter'
and 'recklessly causing serious harm', may be defined differently in foreign
jurisdictions. They can turn on subtle questions about the requisite mental
state of the accused, which may not be understood uniformly across
jurisdictions. Further, different defences may apply in a foreign jurisdiction—for
example, where one country has legalised assisted euthanasia where it remains
criminal in Australia.
It is conceivable, therefore, that a person could be found
guilty of a crime in Australia notwithstanding that at the time of the offence
they would not have been liable under either Australian or foreign law. While
the Bill's retrospectively is purportedly justified on the basis that the
conduct is already criminal elsewhere, there is no requirement in the elements
of the offences that the prosecution must demonstrate that the conduct was
criminal elsewhere (as, for instance, in the 'double criminality' rule in
extradition law).[8]
2.11
Dr Patrick Emerton of Monash University suggested that this problem
could potentially be avoided by introducing a general defence provision into
Division 115 of the Criminal Code, making it a defence to any offence against
the Division that the conduct was not criminal in the jurisdiction in which it
was committed at the time it was committed.[9]
Application of penalties
2.12
The department highlighted that the potential application of penalties
under the Bill may be inconsistent with Australia's international obligations:
Article 15 of the ICCPR provides that a heavier penalty shall
not be imposed 'than the one that was applicable at the time when the criminal
offence was committed'. The penalties for the offences in the Offences Against
Australians Act...are greater than those applicable for similar crimes of murder
and manslaughter in certain Australian State jurisdictions, reflecting the
seriousness of terrorism offences. Given that the Bill is intended to operate
retrospectively, it is possible that the extension of these penalties may raise
issues in relation to Australia's compliance with Article 15 of the ICCPR.[10]
2.13
Dr Emerton suggested that a general sentencing provision could be
introduced into Division 115 to help address this issue, stipulating that no
sentence imposed under the Division may exceed the maximum penalty to which the
convicted person might have been liable had he or she been sentenced for the
criminal conduct in the jurisdiction in which it took place, at the time that it
took place.[11]
Discretion of the Attorney-General
in bringing proceedings
2.14
The Rule of Law Institute argued that the existing provisions in
Division 115 that require the written consent of the Attorney-General before
proceedings can be commenced, provide a strong safeguard even if the
retrospectivity of the offences is extended by the Bill:
As the first law officer it is expected that the
Attorney-General would weigh all the relevant considerations relating to the
commencement of proceedings under these offences. The proposed unlimited
retrospectivity would be another factor to consider for cases occurring before
the 1 October 2002...[12]
The independence of the prosecution in approaching the
Attorney-General to bring proceedings, as well as the ultimate decision as to
whether proceedings will commence is not affected by the retrospective
operation of the offences...We consider the Attorney-General would proceed
cautiously and only in a rare case authorise a prosecution under the Bill.[13]
2.15
Professor Saul and Ms Heath disagreed with this view:
It has been suggested...that the requirement of the
Attorney-General's consent to a prosecution somehow vitiates the problem of
retrospectivity. Legally that view is nonsense. Neither Article 15 [of the
ICCPR] nor general international law confers a right on a national minister to
endorse retrospective criminal punishment, just as ministers enjoy no right to
elect to violate other basic human rights standards. The rule is strict.[14]
Other considerations
2.16
RoLIA noted that the proposed retrospectivity of the provisions in the
Bill 'does not remove the power of an Australian Court to dismiss proceedings
where it finds them manifestly unfair for the accused', and that this provides
an additional level of protection for the accused which prevents the likelihood
of a case progressing where the proceedings would be unfair.[15]
The Rule of Law Institute concluded that, on balance, 'the subject matter of
the Bill and safeguards warrant the provisions being made retrospective'.[16]
2.17
The department did not agree with this conclusion, stating that the
argument mounted in the Explanatory Memorandum was not 'sufficiently persuasive
to permit retrospective application beyond the original 45 days, to the
unlimited timeframe of 'before' the commencement date of 1 October 2002'.[17]
Difficulties associated with bringing proceedings under the Bill
2.18
The department noted the practical challenges associated with bringing
proceedings under Division 115 of the Criminal Code, and countered the claim
made in the Explanatory Memorandum that the Bill 'extends the capacity for
involvement of Australian law enforcement that this Division already provides':
The offences in Part 5.4 do not...empower the Australian
Federal Police or any other Australian law enforcement agency to exercise
powers outside Australia. Any investigation for an offence under Part 5.4 would
need to respect the sovereignty of the jurisdiction in which the alleged
conduct occurred. Evidence may be located outside Australia, which would mean
that the cooperation of that country would be needed to obtain evidence for any
Australian prosecution. Furthermore, where suspects are located outside
Australia, prosecution of the offences in Australia will still depend on the
country in which the suspects are located agreeing to their extradition to
Australia. The proposed retrospectivity of this Bill would make it difficult to
satisfy a common requirement in extradition treaties that dual criminality be
assessed at the time the conduct occurred.[18]
Committee view
2.19
The intended purpose of the Bill is to seek justice for Australians who have
been harmed overseas and the committee believes that this is a laudable aim.
2.20
The committee acknowledges some of the concerns raised in respect of
the Bill, for example its retrospective application and the broadness of
the provisions covering any relevant acts which seriously harm or kill an
Australian overseas. Furthermore, the committee is of the view there may be
practical difficulties that would make it problematic to bring proceedings for
offences under the Bill that occurred before the initial 2002 commencement
date.
2.21
In light of these considerations, the committee is of the view that the further
consultation on the Bill is warranted prior to its consideration by the Senate.
Recommendation 1
2.22
The committee recommends that further consultation is conducted on
the Bill prior to its consideration by the Senate.
Senator the
Hon Ian Macdonald
Chair
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