Bills Digest No. 67 2002-03
Criminal Code Amendment (Offences Against Australians) Bill
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
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Amendment (Offences Against Australians) Bill 2002
House: House of
main part of the Bill, Schedule 1, will commence retrospectively on
To create offences of murder, manslaughter or
serious harm to Australian citizens or residents outside of
Australia. The intent is to:
- facilitate the extradition of persons suspected of such actions
to Australia; and
- make it potentially easier to prosecute a person than under
existing terrorism legislation.
The Criminal Code Amendment (Offences Against
Australians) Bill 2002 (the Bill) was introduced as a direct result
of the Bali Bombings on 12 October 2002. In a joint news release,
the Attorney-General and Minister for Justice and Customs
The legislation will ensure that Australia can
effectively cooperate with the broadest possible range of countries
to combat transnational crimes and prosecute the people responsible
for such atrocities as the Bali attacks.
In particular, it will ensure there are no legal
loopholes in terms of prosecuting terrorist acts involving murder
overseas. It also strengthens legislation in our new
counter-terrorism package, which already has extra-territorial
To extradite a suspected offender from a foreign
country there must be 'dual criminality' - that is, the conduct
must constitute an offence in both Australia and the other
The Bill was introduced on 12 November 2002 and
passed on 14 November.
Unlike State and Territory laws, neither the
Crimes Act (Cmth) 1914 or the Criminal Code (Cmth)
1995 (Criminal Code) contain offences of murder or infliction
of harm against ordinary citizens, except in particular
circumstances, for example in the context of war crimes or crimes
against humanity. The murder of a person may constitute an act of
terrorism under recent amendments to the Criminal
Code(2), but the offence is terrorism, not murder.
As mentioned later in the main provisions
section of this Digest, the conduct constituting the offences
contained in this Bill must occur outside of Australia. From a
constitutional perspective, the authority to legislate
extraterritorially in this manner can be derived from the external
affairs power because the offences relate to matters that are
'physically external' to Australia: see Polyukhovich v.
Commonwealth (War Crimes Act Case) (1991) 172 CLR 501, per
Mason CJ at pp. 530-531.
One of the purposes of the Bill is to make it
potentially easier to prosecute a person for a violent act
committed overseas than under existing terrorism legislation. There
are two broad 'streams' of terrorist offences in the Commonwealth
Criminal Code: offences under Division 72 - International
terrorist activities using explosive or lethal devices and
offences under Part 5.3 - Terrorism.
There are significant prosecution hurdles to
convict a person of a terrorist act under Part 5.3. For example, if
a person plants a bomb in a foreign country that kills an
Australian, a terrorist act would only occur, if amongst other
things, if it was proven that the bombing was
- with the intention of advancing a political, religious or
ideological cause; and
- with the intention of:
- coercing, or influencing by intimidation, the government of the
Commonwealth or a State, Territory or foreign country, or of part
of a State, Territory or foreign country; or
- intimidating the public or a section of the public.
Obviously proving the particular motivation of
the accused beyond reasonable doubt may be quite difficult unless
they, or an accomplice, give relevant evidence.
It is potentially easier to convict a person
under Division 72 since there are no 'motivational' requirements as
outlined above for Part 5.3. However, Division 72 has its own
limitations - for example it would not apply to a bombing which
targets a private residence.
By comparison, the offence provisions of the
Bill do not require proof of motivation, and are not limited to the
bombing of 'public' places. Details of the offence provisions of
the Bill are contained in the main provisions sections of this
Extradition to or from Australia is under the
Extradition Act 1988 (Cmth). In cases where a foreign
country applies to Australia for extradition, paragraph 19(2)(c) of
the Act requires the conduct underlying the extradition request to
be an offence in Australia carrying a penalty of at least 12 months
imprisonment. While there is no such equivalent requirement in the
Act itself when Australia is requesting extradition from a foreign
country to Australia, section 11 of the Extradition Act
1988 allows extradition to be subject to particular conditions
set out in regulations. For example, clause 5 of the Extradition
(Republic of Indonesia) Regulations states that extradition matters
with Indonesia are subject to the 1992 Treaty between the two
countries. Article 2(1) of this treaty provides:
Persons shall be extradited according to the
provisions of this Treaty for any act or omission constituting any
of the following offences, provided the offence is
punishable by the laws of both contracting states by a
term of imprisonment of not less than one year or by a more severe
penalty[offences include]murder, manslaughter, maliciously or
wilfully wounding or inflicting grievous bodily harmand aiding,
abetting, counselling or procuring the commission of, being an
accessory before or after the fact to, or attempting or conspiring
to commit [such offences].(4)
There is no listing of a 'general' terrorism
offence in Article 2(1).
The requirement that a person's conduct be an
offence in both jurisdictions is what called dual
criminality. The principle may be applied differently in
different jurisdictions. One uncertainty surrounding its
application is which part of the conduct may be taken into account
in determining whether that conduct would be an offence in the
jurisdiction from which extradition is requested. Article 2(3) of
the Treaty seems to take a fairly broad view on the question, in
that the respective offences do not need to correspond exactly,
whether in category, title or constituent elements:
For the purpose of this Article in determining
whether an offence is an offence against the law of both
(a) it shall not matter whether the laws of the
Contracting States place the acts or omissions constituting the
offence within the same category of offence or denominate the
offence by the same terminology;
(b) the totality of the acts or omissions
alleged against the person whose extradition is requested shall be
taken into account and it shall not matter whether, under the laws
of the Contracting States, the constituent elements of the offence
Nonetheless, it is possible that an Indonesian
court considering an extradition application might decide that the
elements of the various terrorism offences (eg a requirement for an
ideological or similar motivation by the accused) under the
Commonwealth Criminal Code are not likewise criminalised under
Indonesian law. If so, Indonesia would not be obliged to extradite
persons suspected of the Bali bombings. By introducing the crimes
of murder etc of Australians overseas, the Bill overcomes this
uncertainty in relation to the extradition Treaty with
The Bill also assists to ensure that extradition
requests will not be defeated by application of the 'political
offence' exception. Australias extradition treaties include an
exception(6) to the obligation to extradite where the
requested State determines that the offence for which extradition
was sought is a political offence or an offence of a political
character. It is arguable that the requirement for some form of
ideological motivation in the Criminal Code Part 5.3
offences(7) referred to above might mean that a foreign
court or government could consider those offences to be political
offences.(8) Since the offences created by the Bill do
not include any ideological element, this potential obstacle to
extradition should not arise.
However, it should also be noted that Article 1
of the Australian-Indonesian extradition Treaty further limits the
respective countries obligations to grant an application for
extradition. Indonesia is only obliged under Article 1 to extradite
persons to Australia if they are Australian nationals. For all
other nationals, Indonesia has the discretion whether to extradite
or not.(9) This discretion is in part reflected in
Article 7 of Indonesia's Extradition Law(10), of which
the translation is:
(1) A request for the extradition of a national
of the Republic of Indonesia shall be refused.
(2) A deviation from the provision of paragraph
(1) mentioned above may be made if in the view of the circumstances
it would be better if the person concerned be tried at the
place of the commission of the crime.
It would therefore appear that under the
above law, any Indonesian nationals involved in the Bali bombings
cannot be extradited and tried in Australia, unless their crime was
to engage in conspiracy etc in Australia. As it stands, this law
could only be overridden by a decree of the Indonesia Peoples
Consultative Assembly.(11) The Indonesian
President cannot override the law.
The main part of the Bill, Schedule 1, will be
taken to have commenced on 1 October 2002 ie retrospectively. The
explanatory memorandum to the Bill comments that:
Whilst retrospective offences are generally not
appropriate, retrospective application is justifiable in these
circumstances because the conduct which is being criminalised
-causing death or serious injury - is conduct which is universally
known to be conduct which is criminal in nature. These types of
offences are distinct from regulatory offences which may target
conduct not widely perceived as criminal, but the conduct is
criminalised to achieve a particular outcome.
Item 2 provides that Schedule 1
is taken to have commenced on 1 October 2002, ie
Schedule 1 inserts a new Part 5.4,
Division 104 "Harming Australians" into the Criminal
New section 104.1 creates the
offence of murdering of an Australian citizen / resident. The
conduct constituting the murder must occur outside of Australia,
although the actual death of the victim may occur
elsewhere(12), for example as occurred for severely
injured Australians evacuated from Bali. The accused must have
either intended, or been reckless(13) about, causing
death, to Australians or others. For example, a person setting off
a bomb in a hall thinking only locals were present could be still
guilty of new section 104.1 if the bomb killed an
Australian citizen or resident.
New section 104.1 carries a
maximum penalty of life imprisonment.
New section 104.2 creates the
offence of manslaughter of an Australian citizen / resident. The
elements of the offence are similar to new section
104.1, except that the accused only needs to have either
intended, or been reckless about, their conduct causing 'serious
harm'. Serious harm is already defined in the Criminal Code as
being 'harm(14) (including the cumulative effect of any
harm) that endangers, or is likely to endanger, a persons life; or
that is or is likely to be significant and longstanding'.
New section 104.2 carries a
maximum penalty of 25 years imprisonment.
New section 104.3 creates the
offence of intentionally causing serious harm to an Australian
citizen / resident. The accused must have intended their conduct to
cause serious harm to a person. Being reckless is not required
(this is covered by new section 104.4). As for all
offences in the Bill, the conduct constituting the
offence must occur outside of Australia.
New section 104.3 carries a
maximum penalty of 20 years imprisonment.
New section 104.4 creates the
offence of recklessly causing serious harm to an Australian
The offence carries a maximum penalty of 15
New section 104.5 provides that
the above offences do not exclude or limit the application of other
Commonwealth, State or Territory laws. The explanatory memorandum
to the Bill comments that:
in some circumstancesexisting [Criminal Code]
terrorism laws (which also have extraterritorial application) may
apply to the same conduct to which these offences would apply.
Proposed section 104.5 ensures that where there are two or more
offences covering the same conduct the most appropriate offence is
able to be prosecuted.
New section 104.6 provides that
any prosecutions under the above offence provisions can only be
undertaken with the written consent of the Attorney-General.
However, investigation of a suspected offence and subsequent arrest
and remanding of a suspect does not require such consent.
New section 104.6 is consistent with other
Commonwealth law where prosecutions may involve sensitive security
or foreign relations issues.
Existing sections 15.1-15.4 of the Criminal Code
deal with extending the jurisdiction of Commonwealth criminal law
to various situations where conduct and / or the consequences of
that conduct occur outside of Australia. Section 15.4 ('Category
D') provides the most extended jurisdiction, in that it provides
that an offence applies where the relevant conduct and / or the
consequences occur entirely outside of Australia. New
section 104.8 provides that a slightly modified form of
Category D extended jurisdiction applies to the above new
section 104.1-104.4 offences.
Specifically, new paragraph
104.8(a) means that where the conduct of the accused
occurs overseas, the Division 104 offences will apply regardless of
whether the consequence of that conduct death or serious harm
occurs overseas or in Australia. New paragraph
104.8(b) clarifies how Category D applies to 'ancillary
offences'. The concept of ancillary offences are detailed in
existing Division 11 of the Criminal Code. Essentially, Division 11
provides that attempting to commit an offence, aiding, abetting,
the counselling, procurement or incitement of the commission of an
offence, or engaging in a conspiracy to commit an offence are
all themselves (ancillary) offences. New paragraph
104.8(b) effectively provides that as long as the
'primary' offence (eg murder of an Australian under new
section 104.1) occurs outside of Australia, a related
ancillary offence (eg conspiracy to commit murder) can be committed
whether the relevant ancillary conduct takes place inside or
outside of Australia.
For the purpose of the above offences,
new section 104.9 provides that a person is taken
to have caused the death or harm to another if their conduct
'substantially contributes to the death or harm'. As the
explanatory memorandum notes, this is consistent with the common
law(15) and existing provisions in the Criminal
For the reasons mentioned in the background
section of this Digest, current Indonesian law - assuming there is
no intervention by the Indonesian Peoples Consultative Assembly -
seemingly prohibits any Indonesian nationals involved in the Bali
bombings from being extradited (and thus tried) in Australia.
'Stronger powers to prosecute terrorists' Media
Release 24 October 2002
- See existing subsection 100.1(1) for the required elements of a
- See subsection 100.1(1).
- Article 2(1).
- The dual criminality issue is not just restricted to Indonesia.
It potentially exists in extradition arrangements with other
countries as well.
- But see also footnote 8.
- This should not be an issue for Division 72 offences as
Division 72 implements the 1997 International Convention for the
Suppression of Terrorist Bombing. Article 11 of the Convention
specifically states that 'a request for extradition or for mutual
legal assistance based on [offences under the Convention] may not
be refused on the sole ground that it concerns a political offence
or an offence connected with a political offence or an offence
inspired by political motives'.
- Note that extradition from Commonwealth countries is covered by
the Extradition (Commonwealth Countries) Regulations 1998. These
regulations state that 'an offence constituted by taking or
endangering, attempting to take or endanger or participating in the
taking or endangering of, the life of a person, being an offence
committed in circumstances in which such conduct creates a
collective danger, whether direct or indirect, to the
lives of other persons, is[taken]not to be a political offence in
relation to that Commonwealth country'. Also, Commonwealth Law
Ministers have recently agreed to 'remov[e] the political offence
exception from the [extradition] scheme provides a framework for
extradition arrangements for all Commonwealth countries'. See 'No
Safe Haven for Terrorists', the Hon Daryl Williams, News
Release 22 November 2002.
- The range of extradition treaties Australia has with other
countries seem to vary on issue of whether a country is bound to
extradite its own nationals.
- Law of the Republic of Indonesia, Number 1, 1979.
- The Peoples Consultative Assembly (commonly referred to as to
by the Indonesian acronym, the MPR) is the supreme policy making
body of Indonesian government. The MPR consists of 700 members, 462
of whom are directly elected in general elections. The Indonesian
Armed Forces, which includes the Police, exercise a power of
appointment for a further 38 seats. However, these appointed seats
are gradually being phased out and replaced by elected members.
These elected and appointed members, totalling 500 in number,
comprise the House of Representatives (commonly referred to by the
Indonesian acronym, DPR). The DPR performs the main legislative
function of passing legislation and also supervises the performance
of the executive branch. The remaining 200 members of the MPR, who
do not play an active role in legislative process, are made up of
135 regional representatives and 65 societal group representatives.
- See new section 108.4.
- The Criminal Code defines a person as being reckless if they
'are aware of a substantial risk that the result will occur; and
having regard to the circumstances known to him or her, it is
unjustifiable to take the risk'.
- Harm is itself defined as 'physical harm or harm to a persons
mental health, whether temporary or permanent. However, it does not
include being subjected to any force or impact that is within the
limits of what is acceptable as incidental to social interaction or
to life in the community'.
- See Royall (1991) 172 CLR 378, per Brennan J at
25 November 2002
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