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Thursday, 15 October 2015
Page: 7767


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (12:02): I present the explanatory memorandum and I move:

That the bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Crimes Legislation Amendment (Harming Australians) Bill will amend Division 115 of the Criminal Code Act 1995 to provide for the retrospective application of offences of murder and manslaughter of an Australian citizen or resident overseas.

The Bill will enable prosecution of these offences in Australia, under Australian law, in certain circumstances. The Bill will also include safeguards for the retrospective application of these offences.

Existing Harming Australians offences

Division 115 of the Criminal Code currently provides for four offences resulting in harm to Australians, including murder, manslaughter, recklessly causing serious harm, or intentionally causing serious harm to Australians.

These offences have extra-territorial application and were enacted following the 2002 Bali bombings. The existing offences were given retrospective commencement of 45 days to apply from 1 October 2002.

Purpose

These amendments will extend operation of the offences of murder and manslaughter of an Australian citizen and resident of Australia overseas to crimes committed prior to 1 October 2002.

The maximum penalty under the new laws will be life imprisonment for murder and twenty-five years for manslaughter.

While there are a range of tools at the disposal of Australia's law enforcement agencies, these amendments will clarify that crimes of murder and manslaughter of Australians can be prosecuted, wherever and whenever they occur.

Safeguards

Due to their retrospective operation, the new offences include safeguards to ensure their compatibility with Australia's obligations under international law.

Conduct constituting the offence must be an offence at the time of commission under the law of the country in which the conduct occurred. This is known as the 'dual criminality' requirement.

A person convicted of the new offences will also have the benefit of the lowest applicable penalty for the offence as between the laws of Australia and the country in which the conduct occurred. This is known as the 'benefit of the lowest penalty' requirement.

These two requirements ensure that Australia's criminal laws operate consistently with Australia's obligations under international law on the use of retrospective criminal offences.

As a further safeguard, and consistent with all other offences in Division 115 of the Criminal Code, the Attorney-General's written consent is required to commence proceedings under these provisions.

This is an important safeguard which enables the Attorney-General to consider the circumstances of a case prior to commencing prosecutions.

Conclusion

Tragically Australians have been victims of violent crimes like murder and manslaughter overseas. These amendments provide a further avenue to seek justice for Australian victims of the most serious crimes by applying Australian criminal law to those responsible for these offences when they occurred before 1 October 2002.

This bill demonstrates the Government's commitment to ensuring that Australia has every legal tool it needs to prosecute those who commit heinous crimes on Australian citizens and residents overseas wherever and whenever they may occur.

I commend this bill to the Senate.

Senator BRANDIS: Mr President, I seek leave to make a short statement in relation to the bill.

Leave granted.

Senator BRANDIS: This bill had its genesis in a very tragic event—that is, the killing of Anthea Bradshaw Hall in Brunei in 1994. It was a crime that has not been prosecuted and, but for this bill, could not have been pursued by Australian police. This bill will correct that gap in our law.

I want to acknowledge the presence in the gallery this afternoon of members of Anthea Bradshaw-Hall's family: her father, Martin; her mother, Roslyn; and her brothers Craig and Paul Bradshaw. I also acknowledge the presence in the gallery of Mr Michael O'Connell, the Commissioner for Victims' Rights from the government of South Australia. Might I finally acknowledge the work of two of our parliamentary colleagues who have been instrumental in correcting this injustice and bringing this bill before this chamber: our colleague Senator Nick Xenophon, who introduced his own version of the bill in 2013 and whom I join in co-sponsoring the bill; and the honourable Christopher Pyne, the member for Sturt, who will soon be introducing the bill in the House of Representatives and who represents the federal electorate in which the Bradshaw family lives.

This, as I said at the start, had its genesis in a tragedy. As I said to members of the Bradshaw family a little while ago, this is nevertheless an example of the political and parliamentary system working to respond to a community need across party lines and to correct a gap in our law.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting of the next period of sittings, in accordance with standing orders 111.