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Wednesday, 11 December 2013
Page: 1488

Senator XENOPHON (South Australia) (16:01): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill, and to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

After the deaths of 202 people, 88 of whom were Australians, in the Bali terrorist attacks of 2002, the then Howard Government introduced legislation to make it a crime to harm Australians overseas. The definition of harm includes murder, manslaughter, and intentionally or recklessly causing harm.

At the time, the legislation to amend the Criminal Code Act 1995 was made retrospective to cover occurrences dating from 1 October 2002. This covered the so-called ‘Bali Bombings’ but not cases prior to that date.

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.

The amendments in this bill remove the commencement date for these provisions, and therefore allow them to apply to any case before 1 October 2002 that meets the criteria under Division 115. The aim of this bill is to ensure all Australians can receive justice under these provisions, not just those who were affected after a certain date.

The Act itself already contains safeguards to prevent unmeritorious claims. Section 115.6 contains provisions relating to bringing proceedings under this division, and requires that proceedings must not commence without the written consent of the Attorney-General. This measure will ensure that only cases with evidence that would likely lead to a successful prosecution would be pursued.

Further, in 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.

Equally, 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.

Ultimately, this question is one of support for Australian families who have lost loved ones overseas or who have suffered serious injury as a result of a criminal act. It provides a further avenue for investigation when local authorities do not have the ability or will to pursue a case, and provides an avenue of justice where there would otherwise be no resolution.

It makes no sense to limit a person’s access to justice when the crimes concerned include murder and manslaughter. These are rightly considered inexcusable acts, and the right to seek justice in these cases should not be limited. As Martin Luther King said: “Law and order exist for the purpose of establishing justice, and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.