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Crimes Legislation Amendment (Harming Australians) Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

crimes legislation amendment (harming Australians) bill 2015

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

                                                                                                        



 

crimes legislation amendment (Harming australians) Bill 2015

general Outline

1.                 This Bill amends the Criminal Code Act 1995 to extend the retrospective operation of the offences of murder and manslaughter of an Australian citizen or resident of Australia to crimes that occurred before 1 October 2002.

FINANCIAL IMPACT

2.                 There is no financial impact flowing directly from the offence provisions of this Bill.  Should a person be prosecuted under the provisions, the costs associated with extradition proceedings and the prosecution would be met within existing budgets. 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Crimes Legislation Amendment (Harming Australians) Bill 2015

3.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

4.                 The Bill extends the retrospective application of the offences in sections 115.1 and 115.2 in Division 115 of Part 5.4 of the Criminal Code Act 1995 (Criminal Code) to apply to conduct occurring overseas, ‘whether before or after 1 October 2002 or the commencement of this Code.’ Section 115.1 establishes the offence of murder of an Australian citizen or a resident of Australia. Section 115.2 establishes the offence of manslaughter of an Australian citizen or a resident of Australia.

5.                 The offences in Division 115 were introduced into the Criminal Code by way of the Criminal Code Amendment (Offences Against Australians) Act 2002 forwhich the Royal Assent was given on 14 November 2002.  These offences had limited retrospectivity when introduced - commencing on 1 October 2002 to capture the 2002 Bali bombings.

6.                 The retrospective extension of these offences will ensure that cases involving the murder or manslaughter of Australian citizens or residents of Australia are treated in a consistent way under the Criminal Code.

7.                 Safeguards will apply to the operation of the offences before 1 October 2002 to ensure compliance with Australia’s international obligations.

Human rights implications

8.                 This Bill engages the following human rights:

·          the right to a fair trial in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) including minimum guarantees in criminal proceedings - particularly the protection provided by the principle of double jeopardy in Article 14(7) of the ICCPR, and

·          the prohibition against retrospective criminal offences in Article 15(1) of the ICCPR.

Right to a fair trial including minimum guarantees in criminal proceedings - particularly protection against double jeopardy

9.                 Article 14(1) of the ICCPR requires that in the determination of any criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

10.             The determination of any charges brought against a person under these provisions will be heard by Australian courts, which are competent, independent, and impartial tribunals that will ensure that defendants receive a fair hearing.

11.             These amendments remain subject to existing provisions in Commonwealth laws relating to children’s capacity and to persons with limited mental capacity. Further, the amendments remain subject to the requirements for the Attorney-General’s consent to prosecution, provided for in subsection 115.6 of the Criminal Code. On this basis, these offences are consistent with Australia’s obligations in relation to a fair trial.

12.             Further, Articles 14(2) to 14(7) of the ICCPR establish a series of minimum guarantees, including that a person is informed promptly of the charge, has adequate time and facilities to prepare a defence and communicate with counsel, be tried without undue delay, to be tried in person, receives legal assistance, is able to cross-examine witnesses and have the assistance of an interpreter and is able to have a conviction and sentence reviewed by a higher court.  These protections will all apply to all prosecutions under these offences.

13.             In particular, Article 14(7) of the ICCPR provides that:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

14.             The offences in the Bill are subject to double jeopardy safeguards as required by Article 14(7) of the ICCPR through the inclusion of protections in subsections 115.1(3) and 115.2(3). These provisions ensure that where conduct occurred before 1 October 2002, and conviction or acquittal has been secured in another jurisdiction for the conduct constituting the offence, that person cannot be convicted of an offence against the sections as amended in respect of that conduct.

15.             On this basis, these offences are consistent with the rights to minimum guarantees in criminal proceedings.

Prohibition against retrospective criminal offences in Article 15(1) of the ICCPR

16.             The retrospective application of the offences engages the prohibition on retrospective criminal laws under Article 15(1) of the ICCPR.

17.             Article 15(1) of the ICCPR provides that:

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. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

18.             While retrospective offences are generally not appropriate, retrospective application is justifiable in these circumstances because the conduct which is being criminalised - murder and manslaughter - is conduct which is universally known to be conduct which is criminal in nature.

19.             The Bill includes dual criminality protections in paragraphs 115.1(1)(e) and 115.2(1)(e). The effect of these provisions is that a person will only be liable for an offence of murder or manslaughter in relation to conduct before 1 October 2002 if, at the time they engaged in the conduct, it also constituted an offence against the law of the foreign country. On this basis, these offences ensure that a person cannot be prosecuted for conduct that was not otherwise a criminal offence at the time of its commission, consistent with Article 15(1) of the ICCPR.

20.             The Bill provides that where the conduct occurred before 1 October 2002, if the conduct was punishable by a term of imprisonment less than life (offences against section 115.1) or 25 years (offences against section 115.2), the defendant will be entitled to the benefit of that lower penalty. This is consistent with Australia’s obligations under Article 15(1) of the ICCPR.

21.             The Bill also provides that where the conduct occurring before 1 October 2002 is punishable by non-custodial sentence in the jurisdiction in which the conduct occurred, the court may impose a term of imprisonment of up to life (offences against section 115.1) or 25 years (offences against section 115.2).

22.             Due to the difficulty of anticipating all possible punishments which may be applied in foreign jurisdictions for offences of murder and manslaughter, the Bill does not attempt to prescribe all possible punishments. Where 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. As such, the defendant will be liable to the same maximum penalty which would be applicable to the offences if they had been committed on or after 1 October 2002.

23.             The seriousness of the offences of murder and manslaughter are such that these offences are always appropriately punished by a period of imprisonment, particularly given that murder requires that a person intends to cause or is reckless as to causing death and manslaughter requires that the person intends that the conduct cause serious harm or is reckless to the risk that the conduct will cause serious harm.

24.             These terms of imprisonment are subject to general sentencing principles in Commonwealth law. Of particular relevance are sections 16D, 16A, and 4B of the Crimes Act 1914 . These sentencing principles enable the court to consider a wide range of factors in determining an appropriate sentence. This is intended to enable the court to consider all the circumstances of the offence, including the penalty applicable in the jurisdiction in which the conduct occurred. As not all possible punishments can be foreshadowed and prescribed, this provides a mechanism to ensure that it will be open to the court to impose a term of imprisonment commensurate with the penalty applicable in the foreign jurisdiction.

25.             On this basis, these offences are consistent with the prohibition against retrospective criminal offences.

26.             The Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate.

 

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

27.             This clause provides for the Act to be cited as the Crimes Legislation Amendment (Harming Australians) Act 2015 (the Act).

Clause 2 - Commencement

28.             This clause provides for the commencement of each provision in the Act, as set out in the table. 

29.             Item 1 in the table provides that sections 1 to 3 which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives the Royal Assent. 

30.             Item 2 in the table provides that Schedule 1 will commence on the day after this Act receives the Royal Assent.

Clause 3 - Schedules

31.             This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

SCHEDULE 1 - AMENDMENTS

Criminal Code Act 1995

32.             Schedule 1 makes amendments to Division 115 of the Criminal Code Act 1995 (Criminal Code) to extend the retrospective application of offences of murder and manslaughter of an Australian citizen or resident overseas.

33.             The current provisions were granted the Royal Assent on 14 November 2002, and were given retrospective commencement of 45 days to 1 October 2002.

Item 1 - Paragraph 115.1(1)(a) of the Criminal Code

34.             This item extends the retrospective application of the murder offence. It provides that a person is guilty of the offence if the conduct engaged outside of Australia occurs ‘before or after 1 October 2002 or the commencement of this Code’.

Item 2 - After paragraph 115.1(1)(d) of the Criminal Code

35.             This item provides an additional element for offences where the relevant conduct was engaged in before 1 October 2002. This item clarifies that, in order for the offence to be made out, the conduct constituting the offence must also have constituted an offence against the law of the foreign country in which the conduct occurred.

36.             This is not intended to affect the operation of the provisions relating to conduct which occurred on or after 1 October 2002.

37.             Reference to ‘conduct’ in this item includes physical as well as fault elements.

Item 3 - Subsection 115.1(1) of the Criminal Code (penalty)

38.             This item repeals the penalty applicable for offences against subsection 115.1(1).

Item 4 - At the end of subsection 115.1(1) of the Criminal Code

39.             This item provides a note to clarify that section 115.1 commenced on 1 October 2002.

Item 5 - After subsection 115.1(1) of the Criminal Code

 

40.             This item inserts two new subsections to provide for different penalties dependent on whether the conduct constituting an offence against subsection 115.1(1) was engaged in before 1 October 2002, or on or after 1 October 2002.

41.             For conduct occurring before 1 October 2002, if the offence is punishable in the foreign jurisdiction in which the conduct occurred by a term of imprisonment (other than imprisonment for life) the maximum term of imprisonment applied by an Australian court may not exceed the term of imprisonment that applies in the foreign country.

42.             If the conduct is punishable in the foreign jurisdiction by a non-custodial sentence with no Australian penalty equivalent, the maximum penalty (life imprisonment) will be applicable, subject to general sentencing principles.

43.             Where the conduct occurred on or after 1 October 2002, the offence is punishable by a maximum term of imprisonment for life. This preserves the current approach adopted in subsection 115.1(1).

Item 6 - Subsection 115.1(2) of the Criminal Code

44.             This item amends subsection 115.1(2) to apply absolute liability to the new elements of the murder offence set out in subsection 115.1(1)(e). Absolute liability already applies to the element set out in paragraph 115.1(1)(c) and the amendment maintains that approach.

45.             This means that it will not be necessary for the prosecution to prove a fault element in relation to that particular physical element, and that the defence of mistake of fact will not be available to the defence.

Item 7 - At the end of section 115.1 of the Criminal Code

46.             This item provides that where a person has been convicted or acquitted of an offence regarding conduct in a foreign country before 1 October 2002, that person cannot be convicted of an offence against this section in respect of that conduct. This gives effect to Australia’s obligations under the ‘double jeopardy’ principle in Article 14(7) of the ICCPR.

47.             This provision does not apply to conduct occurring on or after 1 October 2002.

Item 8 - Paragraph 115.2(1)(a) of the Criminal Code

48.             This item extends the retrospective application of the manslaughter offence. It provides that a person is guilty of an offence if the conduct engaged outside of Australia occurs ‘before or after 1 October 2002 or the commencement of this Code’.

Item 9 - After paragraph 115.2(1)(d) of the Criminal Code

49.             This item provides an additional element for offences where the relevant conduct was engaged in before 1 October 2002. This item clarifies that in order for the offence to be made out, the conduct constituting the offence must also have constituted an offence against the law of the foreign country in which the conduct occurred.

50.             This is not intended to affect the operation of the provisions relating to conduct which occurred on or after 1 October 2002.

51.             Reference to ‘conduct’ in this item includes physical as well as fault elements.

Item 10 - Subsection 115.2(1) of the Criminal Code (penalty)

52.             This item repeals the penalty applicable for offences against subsection 115.2(1).

Item 11 - At the end of subsection 115.2(1) of the Criminal Code

53.             This item provides a note to clarify that section 115.2 commenced on 1 October 2002.

 

 

Item 12 - After subsection 115.2(1) of the Criminal Code

 

54.             This item inserts two new subsections to provide for different penalties dependent on whether the conduct constituting an offence against subsection 115.2(1) was engaged in either before 1 October 2002, or on or after 1 October 2002.

55.             For conduct occurring before 1 October 2002, if the offence is punishable in the foreign jurisdiction in which the conduct occurred by a term of imprisonment less than 25 years, the defendant will be liable to the lower penalty.

56.             If the conduct is punishable in the foreign jurisdiction by a non-custodial sentence with no Australian penalty equivalent, the maximum penalty (term of imprisonment not more than 25 years) will be applicable, subject to general sentencing principles.

57.             Where the conduct occurred on or after 1 October 2002, the offence is punishable by a maximum term of imprisonment for 25 years. This preserves the current approach adopted in subsection 115.2(1).

Item 13 - Subsection 115.2(2) of the Criminal Code

58.             This item amends sub section 115.2(2) to apply absolute liability to the new element of the manslaughter offence set out in subsection 115.2(1)(e). Absolute liability already applies to elements set out in paragraphs 115.2(1)(b) and 115.2(1)(c) and the amendment maintains that approach.

59.             This means that it will not be necessary for the prosecution to prove a fault element in relation to these physical elements, and that the defence of mistake of fact will not be available to the defence.

Item 14 - At the end of section 115.2 of the Criminal Code

60.             This item provides that where a person has been convicted or acquitted of an offence regarding conduct in a foreign country before 1 October 2002, that person cannot be convicted of an offence against this section in respect of that conduct. This gives effect to Australia’s obligations under the ‘double jeopardy’ principle in Article 14(7) of the ICCPR.

61.             This provision does not apply to conduct occurring on or after 1 October 2002.