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Criminal Code Amendment (Harming
Australians) Bill 2013
11 December 2013
Summary of committee concerns
The committee seeks further information to determine whether the bill is
compatible with the prohibition against retrospective criminal laws.
This bill proposes to extend the application of existing offences in the
Criminal Code Act 1995 relating to harming Australians overseas. These
offences criminalise the murder or manslaughter of, or causing of serious harm
to, Australian citizens or residents outside of Australia. The offences
commenced on 1 October 2002 and therefore apply to acts committed after that
date. The bill proposes to amend these offences so that they apply to acts
which occur before, on or after the commencement of the offences.
Compatibility with human rights
Statement of compatibility
The bill is accompanied by a statement of compatibility that states that
the bill engages the right to a fair trial,
including the presumption of innocence
and other minimum guarantees in criminal proceedings.
The statement states that the bill 'does not limit or constrain these rights in
any way, as the provisions it amends do not directly relate to enforcement or
the justice system'.
The statement also states that the bill engages the prohibition on
retrospective criminal laws,
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
The statement concludes that the bill is compatible with human rights
because it does not limit any existing rights or breach the prohibition on
retrospective criminal laws.
Committee view on
Prohibition against retrospective criminal laws
The offences which are the subject of this bill were introduced in 2002,
through the Criminal Code Amendment (Offences Against Australians) Act 2002
(the 2002 Act). The measures were implemented in the aftermath of the Bali
bombing attack, which occurred on 12 October 2002. The attack killed 202 people,
including 88 Australians. According to the explanatory memorandum accompanying
the 2002 bill:
offences will provide coverage for overseas attacks on Australian citizens and
residents, and in appropriate circumstances enable the perpetrators of those
attacks to be prosecuted in Australia. The new offences will complement the
existing terrorism legislation, and will provide a prosecution option where
perpetrators are unable to be prosecuted under the terrorism legislation.
In introducing the offences, the then Attorney-General, Mr Daryl
Williams MP, stated:
government is strongly committed to ensuring that Australia has every tool it
needs to prosecute those who engage in heinous crimes overseas against
Australian citizens and residents, such as those we experienced in Bali. ... It
will ensure there are no loopholes in terms of prosecuting terrorist acts
involving murder overseas. And it further strengthens legislation in our new
counter-terrorism package, which already has extraterritorial effect.
While the 2002 Act received Royal Assent and commenced on 14 November
2002, Schedule 1 to the Act containing the new offences commenced
retrospectively with effect from 1 October 2002, approximately six weeks prior
to their enactment. Given the government's intention in introducing the
offences, it appears that the offences were intended to be applicable to the
Bali attack, which occurred approximately one month prior to the passage of the
According to the explanatory memorandum accompanying the 2002 bill:
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
The current bill seeks to extend the retrospective nature of the
offences so that they would apply at any time before the commencement of the
provisions. The committee does not consider that, as stated in the statement of
compatibility, the bill merely 'extends the capacity for involvement of
Australian law enforcement that this Division already provides'.
The bill expands the scope of the offences so that a person may be prosecuted
under the offences for conduct which occurred at any time prior to the
introduction of the offences, including before 1 October 2002.
Article 15 of the International Covenant on Civil and Political Rights
(ICCPR) contains the prohibition against retrospective criminal laws and
provides that no-one can be found guilty of an offence that was not a crime 'under
national or international law' at the time it was committed. The prohibition supports
long-recognised criminal law principles that there can be no crime or
punishment without a prior provision by law. This is an absolute right which
cannot be limited.
For an offence to be a crime under national law for the purposes of article
15(1), it must generally be based in statute or the common law. An offence
under international treaty law may fulfil the requirement of a crime under
'international law' under article 15(1).
A criminal offence may be considered to be based in either national or
international law for the purposes of the prohibition (and as such not contrary
to the prohibition) where it satisfies the requirements of accessibility and foreseeability.
In other words, a person should be able to reasonably foresee the consequences
of their actions. This may be the case even where conduct is not expressly
prohibited at the time which the conduct occurs, but which a person may
reasonably be able to foresee may attract criminal sanction.
Article 15(2) of the ICCPR sets out an exception to the prohibition so
that the prohibition will not apply if the relevant act was criminal at the
time it was committed 'according to the general principles of law recognised by
the community of nations'. Accordingly, the retrospective criminalisation of an
act which is recognised as criminal under customary international law may not
infringe the prohibition.
As set out above, it appears to the committee that the purpose of these
offences when they were originally introduced in 2002 was to strengthen
Australia's counter-terrorism capabilities by enabling the prosecution in
Australia of acts of international terrorism against Australians overseas. However,
the committee notes that the offences themselves are not in fact limited to
offences of terrorism, but apply to any murder, manslaughter or causing of
serious harm to Australians overseas.
The committee intends to write to Senator Xenophon to seek
further clarification on whether the offences which the bill seeks to apply
prior to their commencement:
- involve conduct which is based in international law for the
purposes of article 15(1) of the ICCPR so as not to offend the prohibition;
- involve conduct which meets requirements of foreseeability for
the purposes of article 15(1) of the ICCPR so as not to offend the prohibition;
- involve conduct which is criminal according to the general
principles of law recognised by the community of nations so as to fall within
the exception to the prohibition in article 15(2) of the ICCPR.
Further, the reasons behind why it was considered appropriate to commence
the offences as they were originally introduced prior to their enactment and how
the original offences were considered to be consistent with article 15 of the
ICCPR may assist the committee in assessing the impact of the current proposal.
Accordingly, the committee considers that it will also be useful to seek the
views of the Attorney-General, as the Minister responsible for the Criminal
Code Act 1995, on the above questions.
The committee would welcome the views of the Attorney-General, as
the Minister responsible for the Criminal Code Act 1995, on the rationale
behind the retrospective application of the existing offences and on the
compatibility of the existing offences with the prohibition in article 15 of
the ICCPR, to inform the committee's examination of the current proposal.
Right to be presumed innocent
Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt. Absolute liability offences engage
the presumption of innocence because they allow for the imposition of criminal
liability without the need to prove fault.
However, absolute liability offences will not necessarily be
inconsistent with the presumption of innocence provided that they are within
reasonable limits which take into account the importance of the objective being
sought and maintain the defendant's right to a defence. In other words, such
offences must be reasonable, necessary and proportionate to that aim.
The offences which this bill seeks to expand apply absolute liability to
the circumstance that the person who is harmed is an Australian citizen or
Absolute liability is also applied to the circumstance of the offence of
manslaughter that the conduct causes the death of another person.
The committee considers that the application of absolute liability in
the offences is likely to be compatible with the presumption of innocence. Notwithstanding
the fact that the offences carry high maximum penalties (up to life
imprisonment), absolute liability is only being applied to certain elements of
the offence, elements which do not go to the core of the criminality being
The committee, however, emphasises its expectation, as set out in
its Practice Note 1, that statements of compatibility should include sufficient
detail of relevant provisions in a bill which impact on human rights to enable
the committee to assess their compatibility. This includes identifying and
providing a justification where absolute liability is applied, including where
an existing application of absolute liability is expanded.
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