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The Senate
Legal and Constitutional Affairs
Legislation Committee
Criminal Code Amendment (Harming
Australians) Bill 2013
August 2015
ii
Commonwealth of Australia 2015
ISBN 978-1-76010-269-2
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0
Australia License.
The details of this licence are available on the Creative Commons website:
http://creativecommons.org/licenses/by-nc-nd/3.0/au/.
This document was produced by the Senate Legal and Constitutional Affairs
Committee secretariat and printed by the Senate Printing Unit, Department of the
Senate, Parliament House, Canberra.
iii
Members of the committee
Members
Senator the Hon Ian Macdonald (LP, QLD) (Chair)
Senator Jacinta Collins (ALP, VIC) (from 1.07.2014; Deputy Chair from 10.07.2014)
Senator Catryna Bilyk (ALP, TAS) (from 1.07.2014)
Senator Barry O'Sullivan (NATS, QLD) (from 1.07.2014)
Senator Linda Reynolds (LP, WA) (from 1.07.2014)
Senator Penny Wright (AG, SA)
Former Members
Senator Gavin Marshall (ALP, VIC) (Deputy Chair to 24.02.2014 to 30.06.2014)
Senator the Hon Lisa Singh (ALP, TAS) (Deputy Chair from 24.02.2014 to
30.06.2014)
Senator Sue Boyce (LP, QLD) (to 30.06.2014)
Senator Zed Seselja (LP, ACT) (to 30.06.2014)
Participating Members
Senator Nick Xenophon (IND, SA)
Secretariat
Ms Sophie Dunstone, Committee Secretary
Mr CJ Sautelle, Acting Principal Research Officer
Ms Jo-Anne Holmes, Administrative Officer
Suite S1.61 Telephone: (02) 6277 3560
Parliament House Fax: (02) 6277 5794
CANBERRA ACT 2600 Email: [email protected]
v
Table of contents
Members of the committee ............................................................................... iii
CHAPTER 1
Introduction and background ................................................................................. 1
Referral and conduct of the inquiry ........................................................................ 1
Background ............................................................................................................. 1
Purpose of the Bill .................................................................................................. 3
Overview of the Bill ............................................................................................... 3
Consideration of the Bill by other committees ....................................................... 4
CHAPTER 2
Key issues................................................................................................................... 5
Altering the purpose of the offences in Part 5.4 of the Criminal Code .................. 5
Retrospectivity of the proposed amendments ........................................................ 5
Difficulties associated with bringing proceedings under the Bill .......................... 9
Committee view ...................................................................................................... 9
Additional comments by Senator Nick Xenophon ......................................... 11
Appendix 1 - Public submissions ..................................................................... 37
CHAPTER 1
Introduction and background
Referral and conduct of the inquiry
1.1 On 12 December 2013, the Criminal Code Amendment (Harming Australians)
Bill 2013 (the Bill) was referred, on the recommendation of the Selection of Bills
Committee, to the Senate Legal and Constitutional Affairs Legislation Committee
(the committee), for inquiry and report by 4 March 2014.1 The reporting date was
subsequently extended until 28 May 2014.2 On 27 May 2014 the committee tabled an
interim report for the inquiry, extending the reporting date to 4 December 2014.3 On
3 December 2014, the Senate granted a further extension of time for reporting until
12 February 2015.4 Additional extensions of time to report were subsequently granted,
until 24 June 2015 and then 13 August 2015.5
1.2 The Bill is a private senator's bill, introduced into the Senate by
Senator Nick Xenophon on 11 December 2013.6
1.3 Details of the inquiry, including links to the Bill and associated documents,
were placed on the committee's website at www.aph.gov.au/senate_legalcon. The
committee also wrote to organisations and individuals, inviting submissions by
21 January 2014.
1.4 The committee received 5 submissions, which are listed at Appendix 1. The
committee thanks those organisations and individuals that made submissions to the
inquiry.
Background
1.5 Following the Bali bombings on 12 October 2002, the then federal
government introduced amendments to the Criminal Code Act 1995 (Criminal Code)
which made it an offence to harm Australians overseas.7 The Explanatory
Memorandum to the 2002 bill stated:
The 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
1 Journals of the Senate, No. 11, 12 December 2013, p. 361.
2 Journals of the Senate, No. 16, 4 March 2014, p. 528; Senate Legal and Constitutional.
3 Senate Legal and Constitutional Affairs Legislation Committee, Interim Report into the
Criminal Code Amendment (Harming Australians) Bill 2013, 27 May 2014.
4 Journals of the Senate, No. 73, 3 December 2014, p. 1965.
5 Journals of the Senate, No. 78, 12 February 2015, p. 2158; Journals of the Senate, No. 99,
22 June 2015, p. 2744.
6 Journals of the Senate, No. 10, 11 December 2013, p. 339.
7 Criminal Code Amendment (Offences Against Australians) Act 2002.
2
offences will complement the existing terrorism legislation, and will
provide a prosecution option where perpetrators are unable to be prosecuted
under the terrorism legislation.8
1.6 The relevant provisions are found in Part 5.4 (Division 115) of the
Criminal Code, and cover murder, manslaughter, and intentionally or recklessly
causing serious harm to an Australian citizen or resident in a place outside Australia.9
Under section 115.6, proceedings for an offence under Division 115 cannot be
commenced without the written consent of the Attorney-General.
1.7 While the Criminal Code Amendment (Offences Against Australians) Act
2002 was passed by the Senate and received Royal Assent on 14 November 2002, the
schedule of the legislation containing the new offences and other amendments to the
Criminal Code commenced retrospectively from 1 October 2002.10
The Explanatory
Memorandum to the 2002 legislation stated:
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.11
1.8 The Attorney-General's Department articulated the Commonwealth's broader
criminal law policy in relation to retrospectivity:
Federal Parliament and successive governments have endorsed
retrospective criminal offences only in rare circumstances and with strong
justification, for example where there has been a need to address a gap in
existing offences and moral culpability of those involved means that there
is no substantive injustice in retrospectivity.
The basis for this position is that people are entitled to regulate their affairs
on the assumption that conduct which is not currently a crime will not be
made a crime retrospectively through backdating criminal offences.
This accords with Australia's obligations in relation to Article 15 of the
International Covenant on Civil and Political Rights…which provides that
'[n]o one shall be held guilty of any criminal offence on account of any act
8 Criminal Code Amendment (Offences Against Australians) Bill 2002,
Explanatory Memorandum, p. 1.
9 These offences are found in sections 115.1, 115.2, 115.3 and 115.4 of the Criminal Code
respectively.
10 See: Bills Homepage, Criminal Code Amendment (Offences Against Australians) Bill 2002,
http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?
bId=r1680 (accessed 16 December 2013); Criminal Code Amendment (Offences Against
Australians) Bill 2002, Explanatory Memorandum, p. 2.
11 Criminal Code Amendment (Offences Against Australians) Bill 2002,
Explanatory Memorandum, p. 2.
3
or omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed'.12
Purpose of the Bill
1.9 The Bill seeks to amend the Criminal Code Act 1995 (Criminal Code) in order
to extend existing provisions that make it an offence to harm Australians overseas.
The existing provisions apply only to offences committed after 1 October 2002. The
proposed amendments in the Bill would allow the existing provisions to apply to any
case that occurred before October 2002 and meets other criteria in the Criminal
Code.13
1.10 In his second reading speech, Senator Xenophon stated that an individual case
had highlighted the need for the proposed changes:
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 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.14
Overview of the Bill
1.11 The Bill consists of several preliminary provisions and one schedule. Clause 3
of the Bill states that the object of the Bill is 'justice for Australian citizens and
residents who were the victims of certain violent crimes committed before
1 October 2002 outside Australia'.
1.12 Schedule 1 of the Bill contains the proposed amendments to the
Criminal Code. Item 1 of Schedule 1 seeks to amend paragraphs 115.1(1)(b),
115.2(1)(b), 115.3(1)(b) and 115.4(1)(b) of the Criminal Code. In each instance, this
proposed amendment would extend the application of each of the four offences
contained in Division 11515
by inserting the phrase "whether before, on or after the
commencement of this section" in relation to each offence. For example,
subsection 115.1(1), which deals with the murder of an Australian citizen or resident,
would read:
(1) A person is guilty of an offence if:
(a) the person engages in conduct outside Australia; and
12 Submission 3, p. 3.
13 Explanatory Memorandum (EM), p. 2.
14 Senator Nick Xenophon, Senate Hansard, 11 December 2013, p. 73.
15 These are: Murder of an Australian citizen or resident of Australia (section 115.1);
Manslaughter of an Australian citizen or resident of Australia (section 115.2); Intentionally
causing serious harm to an Australian citizen or resident of Australia (section 115.3); and
Recklessly causing serious harm to an Australian citizen or resident of Australia.
4
(b) the conduct causes the death of another person, whether before,
on or after the commencement of this section;16
and
(c) the other person is an Australian citizen or a resident of Australia;
and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, the death of the Australian citizen or resident of Australia or
any other person by the conduct.
1.13 Item 2 of Schedule 1 is an avoidance of doubt provision, which clarifies that
the amendments made by Schedule 1 apply to "conduct that occurs at any time,
whether before, on or after the commencement of Schedule 1 to the Criminal Code
Amendment (Offences Against Australians) Act 2002".
Consideration of the Bill by other committees
1.14 The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny Committee) considered the Bill in its Alert Digest No. 1 of 2014, and stated
that 'neither the explanatory memorandum nor the statement of compatibility detail the
extent of the problem which the bill seeks to address'. Further, the Scrutiny Committee
considered that 'the justification offered for the approach taken in this bill is
insufficiently detailed and informative', and stated it would seek further advice from
Senator Xenophon regarding the issues it had raised.17
1.15 The Parliamentary Joint Committee on Human Rights (PJCHR) also
commented on the Bill in its Second Report of the 44th
Parliament. The PJCHR stated
that further clarification was required to explain how the Bill does not offend the
prohibition on retrospective criminal laws in Article 15 of the ICCPR, and proposed to
seek clarification from Senator Xenophon on this matter.18
16 Emphasis added to show the proposed amendments contained in the Bill.
17 Senate Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2014, 12 February 2014,
pp 1-2.
18 Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament,
February 2014, p. 33.
CHAPTER 2
Key issues
2.1 Submitters raised several issues in relation to the Bill. Of principal interest
was whether the amendments introduced by the Bill are consistent with the stated
purpose of the current offences in Part 5.4 (Division 115) of the Criminal Code, and
the justification for the retrospective application of offences proposed by the Bill.
Altering the purpose of the offences in Part 5.4 of the Criminal Code
2.2 The Attorney-General's Department (the department) noted that the offences
in Part 5.4 were introduced in response to the 2002 Bali bombings in which
88 Australians were killed, in order to ensure that 'there are no loopholes in terms of
prosecuting terrorist acts involving murder overseas' and 'provide a prosecution option
where perpetrators are unable to be prosecuted under the terrorism legislation'.1
2.3 The Rule of Law Institute Australia (RoLIA) argued that the Bill 'departs
significantly' from this original purpose, broadening it to operate as a 'catch-all for any
relevant act committed at any point in time in the past which has harmed an
Australian', rather than targeting terrorist acts more specifically.2 RoLIA suggested
that, in the context of the Attorney-General authorising proceedings to be brought
under Division 115, the new broader purpose of the Division could be inconsistent
with other factors which the Attorney-General would necessarily have to consider.3
Retrospectivity of the proposed amendments
2.4 Submitters discussed several points in relation to the proposed extension of
the retrospective application of the offences in Division 115 of the Criminal Code,
including: whether the original legislation that introduced these offences into the
Criminal Code constitutes a precedent for extending retrospectivity through the Bill;
whether this aspect of the Bill is consistent with Australia's obligations under
international law; and the role of the Attorney-General in bringing proceedings under
Division 115.
Precedent formed by the 2002 legislation
2.5 Senator Xenophon's second reading speech argued that the original Act that
introduced Division 115 into the Criminal Code forms a precedent for the
amendments proposed in the Bill:
[I]n 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,
1 Submission 3, p. 2.
2 Submission 2, p. 4.
3 Submission 2, p. 6.
6
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.4
2.6 The department noted that the initial retrospectivity in the Bill was designed
specifically to cover the Bali bombings:
[W]hen the offences in Part 5.4 were introduced, a 45-day retrospective
application was permitted to cover the circumstances of the Bali
bombings…These offences were not intended to have any further
retrospective effect to cover other significant terrorist events involving
Australians, including, for example, the September 11 bombings.5
Consistency with Australia's international law obligations
2.7 Submitters raised several issues in relation to the Bill's consistency with
Australia's obligations under article 15 of the International Covenant on Civil and
Political Rights (ICCPR).
2.8 The Bill's Statement of Compatibility with Human Rights states that the Bill
does not or breach the prohibition on retrospective criminal laws, noting:
The 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 already provides.6
2.9 Professor Ben Saul and Ms Kathleen Heath of the Sydney Centre for
International Law disagreed, arguing that the Bill does violate the prohibition on
retrospective criminal laws:
The effect of Article 15 [of the ICCPR] is to require criminal liabilities in
every national legal system to be prospectively knowable, or notified in
advance, to those subject [to] those liabilities. The sole exception concerns
international crimes. Article 15 does not, and was not intended to, permit
one national jurisdiction to retrospectively punish conduct on the basis that
it was already criminalised in a foreign national jurisdiction but not locally.
…The reference in Article 15(1) to 'national' law means that each national
legal system must prospectively prescribe the scope of criminal liabilities. It
does not mean, and has never been understood to mean in the jurisprudence,
that a national law is not retrospective as long as some other nation's law
4 Senate Hansard, 11 December 2013, p. 73.
5 Submission 3, p. 3.
6 Explanatory Memorandum (EM), p. 4.
7
already criminalises that conduct. This is obvious from the text, drafting
history, and subsequent interpretation of Article 15(1).7
2.10 Professor Saul and Ms Heath also explained that the offences modified by the
Bill are not necessarily uniform across jurisdictions:
Further, the offences in Division 115, including 'murder', 'manslaughter' and
'recklessly causing serious harm', may be defined differently in foreign
jurisdictions. They can turn on subtle questions about the requisite mental
state of the accused, which may not be understood uniformly across
jurisdictions. Further, different defences may apply in a foreign
jurisdiction—for example, where one country has legalised assisted
euthanasia where it remains criminal in Australia.
It is conceivable, therefore, that a person could be found guilty of a crime in
Australia notwithstanding that at the time of the offence they would not
have been liable under either Australian or foreign law. While the Bill's
retrospectively is purportedly justified on the basis that the conduct is
already criminal elsewhere, there is no requirement in the elements of the
offences that the prosecution must demonstrate that the conduct was
criminal elsewhere (as, for instance, in the 'double criminality' rule in
extradition law).8
2.11 Dr Patrick Emerton of Monash University suggested that this problem could
potentially be avoided by introducing a general defence provision into Division 115 of
the Criminal Code, making it a defence to any offence against the Division that the
conduct was not criminal in the jurisdiction in which it was committed at the time it
was committed.9
Application of penalties
2.12 The department highlighted that the potential application of penalties under
the Bill may be inconsistent with Australia's international obligations:
Article 15 of the ICCPR provides that a heavier penalty shall not be
imposed 'than the one that was applicable at the time when the criminal
offence was committed'. The penalties for the offences in the Offences
Against Australians Act…are greater than those applicable for similar
crimes of murder and manslaughter in certain Australian State jurisdictions,
reflecting the seriousness of terrorism offences. Given that the Bill is
intended to operate retrospectively, it is possible that the extension of these
penalties may raise issues in relation to Australia's compliance with
Article 15 of the ICCPR.10
2.13 Dr Emerton suggested that a general sentencing provision could be introduced
into Division 115 to help address this issue, stipulating that no sentence imposed
7 Submission 5, p. 2.
8 Submission 5, p. 2. See also: Dr Patrick Emerton, Submission 1, p. 2.
9 Submission 1, pp 2-3.
10 Submission 3, p. 4. See also: Dr Patrick Emerton, Submission 1, p. 2.
8
under the Division may exceed the maximum penalty to which the convicted person
might have been liable had he or she been sentenced for the criminal conduct in the
jurisdiction in which it took place, at the time that it took place.11
Discretion of the Attorney-General in bringing proceedings
2.14 The Rule of Law Institute argued that the existing provisions in Division 115
that require the written consent of the Attorney-General before proceedings can be
commenced, provide a strong safeguard even if the retrospectivity of the offences is
extended by the Bill:
As the first law officer it is expected that the Attorney-General would
weigh all the relevant considerations relating to the commencement of
proceedings under these offences. The proposed unlimited retrospectivity
would be another factor to consider for cases occurring before the
1 October 2002…12
The independence of the prosecution in approaching the Attorney-General
to bring proceedings, as well as the ultimate decision as to whether
proceedings will commence is not affected by the retrospective operation of
the offences…We consider the Attorney-General would proceed cautiously
and only in a rare case authorise a prosecution under the Bill.13
2.15 Professor Saul and Ms Heath disagreed with this view:
It has been suggested…that the requirement of the Attorney-General's
consent to a prosecution somehow vitiates the problem of retrospectivity.
Legally that view is nonsense. Neither Article 15 [of the ICCPR] nor
general international law confers a right on a national minister to endorse
retrospective criminal punishment, just as ministers enjoy no right to elect
to violate other basic human rights standards. The rule is strict.14
Other considerations
2.16 RoLIA noted that the proposed retrospectivity of the provisions in the Bill
'does not remove the power of an Australian Court to dismiss proceedings where it
finds them manifestly unfair for the accused', and that this provides an additional level
of protection for the accused which prevents the likelihood of a case progressing
where the proceedings would be unfair.15
The Rule of Law Institute concluded that, on
balance, 'the subject matter of the Bill and safeguards warrant the provisions being
made retrospective'.16
2.17 The department did not agree with this conclusion, stating that the argument
mounted in the Explanatory Memorandum was not 'sufficiently persuasive to permit
11 Submission 1, p. 3.
12 Submission 2, p. 5.
13 Submission 2, p. 7.
14 Submission 5, p. 2.
15 Submission 2, p. 7.
16 Submission 2, p. 7.
9
retrospective application beyond the original 45 days, to the unlimited timeframe of
'before' the commencement date of 1 October 2002'.17
Difficulties associated with bringing proceedings under the Bill
2.18 The department noted the practical challenges associated with bringing
proceedings under Division 115 of the Criminal Code, and countered the claim made
in the Explanatory Memorandum that the Bill 'extends the capacity for involvement of
Australian law enforcement that this Division already provides':
The offences in Part 5.4 do not…empower the Australian Federal Police or
any other Australian law enforcement agency to exercise powers outside
Australia. Any investigation for an offence under Part 5.4 would need to
respect the sovereignty of the jurisdiction in which the alleged conduct
occurred. Evidence may be located outside Australia, which would mean
that the cooperation of that country would be needed to obtain evidence for
any Australian prosecution. Furthermore, where suspects are located
outside Australia, prosecution of the offences in Australia will still depend
on the country in which the suspects are located agreeing to their
extradition to Australia. The proposed retrospectivity of this Bill would
make it difficult to satisfy a common requirement in extradition treaties that
dual criminality be assessed at the time the conduct occurred.18
Committee view
2.19 The intended purpose of the Bill is to seek justice for Australians who have
been harmed overseas and the committee believes that this is a laudable aim.
2.20 The committee acknowledges some of the concerns raised in respect of
the Bill, for example its retrospective application and the broadness of the provisions
covering any relevant acts which seriously harm or kill an Australian overseas.
Furthermore, the committee is of the view there may be practical difficulties that
would make it problematic to bring proceedings for offences under the Bill that
occurred before the initial 2002 commencement date.
2.21 In light of these considerations, the committee is of the view that the further
consultation on the Bill is warranted prior to its consideration by the Senate.
Recommendation 1
2.22 The committee recommends that further consultation is conducted on
the Bill prior to its consideration by the Senate.
Senator the Hon Ian Macdonald
Chair
17 Submission 3, p. 3.
18 Submission 3, p. 4.
Additional comments by Senator Nick Xenophon 1.1 For over 20 years, the Bradshaw family have been fighting to obtain justice
following the brutal murder of their 26 year old daughter Anthea Bradshaw-Hall in
Brunei in 1994. Brunei authorities have failed lay charges in the case. However,
forensic evidence obtained by Australian authorities led to the former director of
Public Prosecutions in South Australia, Stephen Pallaris QC, indicating there was a
strong case to lay charges against a suspect. Of course, this bill is not just about one
particular tragic case and one family’s search for justice. Its application will be to give
the families of those murdered overseas, in the absence of action by local authorities, a
real opportunity for justice and closure.
1.2 The Criminal Code Amendment (Harming Australians) Bill 2013 aims to
extend existing provisions within the Criminal Code Act 1995 ('the Criminal Code')
that make it an offence to harm Australians overseas. These provisions were
introduced following the 2002 Bali terrorist bombings in which 88 Australians were
killed. However these provisions only extend to offences committed against
Australians on or after 1 October 2002. As a result a gap exists in the Federal
Government’s ability to prosecute serious offences committed against Australians
overseas prior to that date.
1.3 As the Explanatory Memorandum explains:
The aim of this bill is to allow prosecutions under this division to apply to
any case that occurred before this date and that meets the other criteria in
the division. This is to ensure that all Australians harmed overseas have
access to the same level of justice.1
1.4 I acknowledge the concerns of some parties that this bill offends the
prohibition on retrospective criminal laws contained in Article 15 of the International
Covenant on Civil and Political Rights.
1.5 In its justification of the amendments to the Criminal Code following the Bali
bombings the Attorney General's Department stated:
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.2
1 Explanatory Memorandum, p. 2.
2 Criminal Code Amendment (Offences Against Australians) Bill 2002,
Explanatory Memorandum, p. 2.
12
1.6 Just as the 2002 amendment related to prosecution following death or serious
injury to an Australian overseas, so too does this bill. The Explanatory Memorandum
explains:
The 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 already provides.3
1.7 Murder, manslaughter and causing serious harm are all currently considered
to be crimes in every jurisdiction in the world. A person committing one of these
crimes at any time could not have operated on the assumption that they were not
committing a crime.
1.8 Ms Claire O'Connor SC, a noted human rights lawyer, provided a legal
opinion on the operations of this bill. In relation to retrospectivity she stated:
In my view the Bill cannot be said to breach the human right in relation to
the rule about retrospectivity because of the observed difference between an
act being a crime at the time of the commission as distinct from an act
which was not a crime at the time. In any event if there is a failure to afford
a human right to an accused this is outweighed by the more compelling
human right of the victim.4
1.9 Ms O'Connor SC continued:
It is my view that the proposed Bill does not fall foul of the intent of Article
15 of the ICCPR. There is a distinction between protecting persons from
being charged with crimes that were not crimes at the time of the
commission and charging persons with crimes that were crimes at the time
but where the jurisdiction to try the crime in Australia only has been
extended.5
1.10 The committee has also raised concerns about the open ended nature of this
amendment, however I reject this assertion on the following grounds:
1.11 Section 115.6 of the Criminal Code specifically states that proceedings for an
offence under this Division must not be commenced without the Attorney-General's
written consent. Further, orders relating to extradition proceedings provide a further
threshold that must be met before proceedings can be commenced.
1.12 As Ms O'Connor SC pointed out in her opinion:
Further, there are safeguards with the process of charge and proceedings
with a trial which enables any accused to put to a Court particular matters
3 EM, p. 4.
4 Claire O'Connor SC, Opinion – Criminal Code Amendment (Harming Australians) Bill 2014,
p. 7 (included at Attachment A).
5 Claire O'Connor SC, Opinion – Criminal Code Amendment (Harming Australians) Bill 2014,
p. 7.
13
which he/she says impact on the ability of an accused to have a fair trial;
prosecution is not automatic simply because a charge is laid…6
1.13 The Attorney-General's Department also raised concerns that the potential
penalties that may apply to those convicted under the provisions in the bill may be
heavier than those that are already in place. I believe this is an example of a
permissible limitation in terms of human rights concerns for several reasons. Firstly,
the offences that apply are serious criminal offences, including murder, which might
reasonably be expected to carry far greater penalties in other jurisdictions, including
the death penalty. It is therefore foreseeable that a person who had, for example,
murdered an Australian in an overseas jurisdiction may face a lesser penalty if
required to face this charge in Australia than they would have in the jurisdiction in
which they committed the crime.
1.14 It is disappointing the committee is maintaining its position that this bill is an
'inappropriate vehicle' for pursuing the goal of seeking justice for Australians killed or
seriously harmed overseas. I consider this bill is a very appropriate vehicle for
pursuing the goal of seeking justice for Australians killed or seriously harmed
overseas.
1.15 I acknowledge there are concerns about the operation of this bill and so I take
this opportunity to indicate that I propose to amend the bill in line with the
recommendations made by Ms O'Connor SC.
1.16 For example, Ms O'Connor SC has suggested the bill could be refined by
specifying a requirement that criminal processes in the jurisdiction of the offence must
be exhausted before the processes in this bill can be activated. Ms O'Connor's opinion
is attached.
1.17 Finally, I am grateful to the committee and its chair, the Senator the Hon Ian
Macdonald for their patience in this matter. I have been involved in lengthy
negotiations with the Attorney-General and his office for a considerable period since
prior to the introduction of this bill. I am grateful for the Attorney and his advisers'
time and I hope the Government will be making a decision in the near future as to the
progress of this bill, or a bill in similar terms, so that the family of
Anthea Bradshaw-Hall, and many other Australian families, can obtain justice where
an Australian has been killed or seriously injured overseas as a result of a criminal act.
Recommendation 1
1.18 That this bill be passed with appropriate amendments as outlined in the
opinion of Ms O'Connor SC.
Senator Nick Xenophon
6 Claire O'Connor SC, Opinion – Criminal Code Amendment (Harming Australians) Bill 2014,
pp 8-9.
OPINION
CRIMINAL CODE AMENDMENT (HARMING AUSTRALIANS) BILL 2013
Introduction
1. I have been asked to provide an opinion in relation to the human rights implications
of the Criminal Code Amendment (Harming Australians) Bill 2013 (the Bill). I have
not been asked to give my opinion on any likely outcome of legal challenges that
may arise should a prosecution be instigated against a citizen or resident if the Bill is
passed. I do comment however on the likely approach of the High Court might take
consistent with previous decisions should a challenge be instigated by an accused
person.
2. The Bill was introduced as a private senator’s bill into the Senate by Senator Nick
Xenophon on 11 December 2013. Schedule 1 of the Bill seeks to amend the
Criminal Code 1995 (Cth) to give retrospective effect to the offences in Part 5.4 of
the said Code relating to harming Australians.
3. The offences in Part 5.4 were introduced into the Criminal Code through the
Criminal Code Amendment (Offences Against Australians) Act 2002 in response to
the Bali Bombings. This amendment had 6 weeks retrospectivity. The Explanatory
Memorandum addressed the retrospective nature of Part 5.4.
4. That legislation was introduced to ensure that persons who could not be charged
under terrorism legislation for the Bali bombings did not escape prosecution.
5. In accordance with Part 5.4 any person may be prosecuted in Australia for a murder,
manslaughter, or recklessly causing serious harm to an Australian citizen or resident
where the offence occurred outside Australia.
6. The Bill seeks to add into Part 5.4 of the Act the words “whether before, or after the
commencement of this section.”
Additional Comments from Senator Nick Xenophon - Attachment A
2
7. The Explanatory Memorandum for the Bill states that the “impact of the amendment
will be that previous situations where an Australian citizen or resident has been
harmed overseas may now be included under the offence provisions in that
Division.”
8. I understand that the Commonwealth Attorney-General’s Department has sought
from Senator Xenophon an Opinion that addresses the human rights implication of
the Bill.
The Background to the Proposed Bill.
9. In 1994 a woman, Anthea Bradshaw-Hall, was murdered. Bradshaw-Hall and her
husband had been married for only three months and were renting an apartment in
Brunei when her husband claimed he returned home one day to find her murdered.
She has significant inflicted injuries. She had been strangled and stabbed. The
couple were Australian citizens.
10. No one has been charged.
11. Ms. Bradshaw-Hall has very supportive family who have sought justice for her.
12. The former Director of Public Prosecutions in SA, Stephen Pallaras, QC, was asked
by the deceased’s family to review the case. He did so.
13. Mr. Pallaras said he would have supported the prosecution of an unnamed suspect
on the evidence he then had. The Brunei police were provided with Mr Pallaras’s
view but would not lay a charge against the suspect. Mr. Pallaras instigated further
inquiries.
14. The deceased’s family also have the support of South Australian Police, such
support including, in 2003, the then South Australian Police Commissioner meeting
with the Brunei High Commissioner to try to press for charges to be laid. Still the
Brunei authorities did not charge anyone.
15. South Australian Police detectives travelled to Brunei in November 2004; reviewed
3
the case file; copied statements and interviewed other witnesses who were not
spoken at the time of the initial investigation. Exhibits were handed over to the
South Australian police by the Brunei police who brought them to Australia to have
them forensically examined by the South Australian Forensic Science Centre. Mr.
Pallaras then said that those results further confirmed his view that the suspect was
implicated and should be charged.
16. The South Australian Police had also interviewed the suspect.
17. The information gained from examining the exhibits and taking further statements
etc. were passed on to the Brunei authorities along with Mr. Pallaras’s view. Once
again the authorities in Brunei refused to act.
18. Mr. Pallaras continued to state his view that if the murder had occurred in his State
as DPP he would have recommended a prosecution of the suspect.
19. At present the suspect cannot be charged unless the Brunei police have a change of
heart (and after 20 years this is highly unlikely) or the Bill is passed.
20. It is intended that the Bill will have retrospective effect to enable this to occur.
Materials Provided
21. I confirm that Senator Xenophon’s office has provided me with the following
• Attorney-General Department’s submission in relation to the Senate Standing
Committee on Legal and Constitutional Affairs Inquiry into the Criminal Code
Amendment (Harming Australians) Bill 2013, dated January 2014 (The Senate
Standing Committee).
• A copy of the proposed Bill (which is an amendment to the Criminal Code Act
1995).
• The Explanatory Memorandum to the Senate of 2013
• Links to a newspaper report in relation to the information about the deceased’s
story.
4
• The submissions received by the Senate Standing Committee.
The Current Law
22. There are two legislative instruments in Australia which enable Australia to
prosecute others for crimes committed entirely outside the jurisdiction and which
have retrospective effect.
23. The War Crimes Amendment Act (1998) (Cth) amended the War Crimes Act 1945
and enabled the prosecution of persons resident in Australia for war crimes
committed during the Second World War. The retrospective nature of the legislation
has been the subject of academic and legal comment.
24. The Criminal Code Amendment (Offences Against Australians) Act 2002, was
granted Royal Assent on 15 November 2002 and was made in respect to 1 October
2002. As referred to above this enabled prosecutions for the Bali bombing which
occurred some 4 weeks earlier.
25. In criminal law the courts have been loath to approve retrospective legislation. The
Attorney General’s Submission states, correctly, that,
“Federal Parliament and successive governments have endorsed retrospective criminal offences only in rare circumstances and with strong justification, for example where there has been a need to address a gap in existing offences and moral culpability of those involved means that the is no substantive injustice in retrospectivity.” (para 9) The basis for this position is that people are entitled to regulate their affairs on the assumption that conduct which is not currently a crime will not be made a crime retrospectively through the backdating of criminal offences….” (Para 10 of the Submission).
26. The human rights principle that applies to such opposition is that a person should
know when committing a particular act that the act is unlawful when it was
committed.
27. This principle is expressed in the International Covenant on Civil and Political
Rights, 1966 (ICCPR) which came into force generally in 1976 and, the relevant
section, in Australia, in 1979. Article 15 of the Covenant says,
5
1. 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 a lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
Human Rights
28. Any discussion on human rights needs to recognize that often in complex matters
there can be two competing rights which are in conflict. In the case that Bill is
attempting to resolve we have a clear example of the tension between such
competing rights. One the one hand we have the right of a citizen or resident not to
be charged for a crime which it might be said was not chargeable in Australia at the
time of the commission of that crime. The other right is that of a victim having justice.
There is a right for the victim, her family and society to have a wrongdoer brought to
trial and to prevent criminal being able to hide behind an incompetent and/or corrupt
external regime and thereby escape conviction for the most serious of all crimes; as
in this case - murder.
29. Since World War II there has been a growing appreciation in international
communities and some member States, including Australia, that women as victims
of serious crime have been ignored or given less priority in rights discussions about
criminal law. Many attempts to rectify this imbalance have occurred. While boys and
men have been the victim of sexual crimes it is by far women and girls who are
generally the victims of such offending.
30. The steps that Australian States and Territories and the corresponding Courts and
investigative arms of Government have taken to protect women and girls as victims
include;
6
• The extension in most States and Territories of the ability to charge
historical sex crimes,
• The ability of a tribunal to hear a complainant’s first complaint of a sexual
crime as an exception to the hearsay rule,
• The recognition of the need to reconsider consent laws,
• The removal of the bar on rape in marriage,
• Consideration, even if not at a legislative stage, of the need to redefine
‘provocation’ in the context of female conduct,
• Increasing penalties for domestic crimes - for example in some jurisdictions
instead of the courts finding that an assault or rape occurred as ‘just a
domestic matter,’ as was the case 25 years ago, instead Parliaments
enacting legislation whereby being in a domestic relationship and harming a
partner or child becomes an aggravating feature,
• Training of police in the recognition of cycles of violence,
• Setting up specialists courts to encourage women and girls to proceed with
court actions against perpetrators,
• Having suppression orders designed to protect the identity of victims of sex
crimes,
• Allowing evidence to be taken in a protected way; for example by video
streamed into the court room, behind screens, allowing a support person to
sit with the victim and the use of other forms of evidence capture e.g. in
Western Australia the complainant can give evidence soon after reporting a
crime to save delay and the compounding of the stress of the charges with
years waiting for a jury trial,
• Restricting the practice of oral committals for victims of sexual crimes so
that victims only give their evidence once.
7
31. In the international arena the woman and girl as victim has also been given greater
significance in recent decades. Some examples include;
• Concern and action on elimination of genital mutilation,
• The ratification by some member states of the 1979 Convention to Eliminate
All Forms of Discrimination Against Women (which Australia ratified in
1983),
• The London Summit to End Sexual Violence in Conflict, in June 2014,
which saw recommendations which included the creation of categories for
War Crimes Tribunal to try offenders who have committed sexual crimes,
• The recognition of the need for apologies and compensation for the
thousands of ‘comfort women’ used by the Japanese during World War II.
Does the Bill Breach Human Rights?
32. In my view the Bill cannot be said to breach the human right in relation to the rule
about retrospectivity because of the observed difference between an acts being a
crime at the time of the commission as distinct from an act which was not a crime at
the time. In any event if there is a failure to afford a human right to an accused this is
outweighed by the more compelling human right of the victim. However it is my view
that there are valid problems with the current form of the Bill as stated below.
33. It is my view that the proposed Bill does not fall foul of the intent of Article 15 of the
ICCPR. There is a distinction between protecting persons from being charged with
crimes that were not crimes at the time of the commission and charging persons with
crimes that were crimes at the time but where the jurisdiction to try the crime in
Australia only has been extended.
34. Part (2) of Article 15 in my view recognizes this distinction.
35. Article 15 of the ICCPR did not intend to permit one national jurisdiction to punish
8
conduct because it was already criminalized in another jurisdiction, but not locally.1
36. Dr. Saul, in the material given to me, opines that the offences in Division 115 of the
Bill includes offences for which there might be different standards across different
jurisdictions with different defences applying across those jurisdictions. He criticizes
the proposed Bill in that, for example, a person could be found guilty of a crime in
Australia which they could not have been guilty of at the time of the offence in either
Australian or foreign law. In my view this is incorrect and it is not what the Bill is
seeking to do. If I am wrong about that then the suggestions at the end of the
Opinion will deal with Dr. Saul’s concerns.
37. In Polyukhovich v The Commonwealth (1991) 172 CLR 501 the High Court found
that the War Crimes Amendment Act 1988 was lawful because it in fact sought to
prosecute for offences which would have been crimes at the time of the commission
of the offence. Further, the as pointed out earlier the ICCPR, paragraph (2) of Article
15, says,
“Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.” (My emphasis).
38. I note that the Submission by the Attorney General, in seeking to differentiate the Bill
from the other legislative instruments that allow for retrospective prosecution points
out that 88 Australians died in the Bali bombings and, although not numerated,
many died in World War II. Prosecutions under the War Crimes Act 1945 occurred
after the enactment in Japan for example.
39. It should not matter whether a person or a number of persons are killed by a
perpetrator and there is nothing compelling in any argument for limiting the
application of retrospective legislation to mass deaths.
40. Further, there are safeguards with the process of charge and proceeding with a trial
1 See submission of Dr Ben Saul to the Senate Legal and Constitutional Affairs Committee 29 January 2014.
9
which enables any accused to put to a Court particular matters which he/she says
impact on the ability of an accused to have a fair trial; prosecution is not automatic
simply because a charge is laid unlike other serious crimes committed within
Australia.
41. The definition of serious crimes encompasses only those offences where the
community has a public interest to ensure the rights of victims are paramount over
the rights of a perpetrator.
42. This approach is consistent with the majority of the High Court in Polyukhovich
which considered the challenge to the lawfulness of retrospective charging of
Australian residents and citizens for war crimes committed during World War II. (See
below for the analysis of the Judgement.)
43. There are some concerns I have with the scope of the Bill that the Senator might
need to consider. The Bill does differ fundamentally from the other Acts charging
criminal offences that have had retrospective effect in Australia -
• The Bill is not directed at any particular period of time or event. The War
Crimes Act 1945 was backdated to 1939; The Criminal Code Amendment
(Offences Against Australians) Act 2002 was only given less than two
months retrospective effect. The Submission by the Attorney General says
that there is potential for a person to be charged for a crime that goes back
as far as Federation. Of course that person would now be over 100 year
old. The period caught by the Bill is, likely to be from the post war period. If
the Bill also says a person is not to be charged unless they were an adult at
the time of the commission of the offence (which was formerly 20) then a
person born turning 20 in 1945 would be 89 years old now.
• The Bill is not targeting any particular event even though it was proposed as
a change to enable prosecution of the suspect in the aforementioned
10
murder. While it is my view that this does should and does not have a
human rights impact of itself it may make any challenges to the
retrospective nature of the amendment more likely and/or more difficult to
defend,
• The Bill is not dealing with a catastrophic event that concerns all
Australians; unlike the Bali bombing in 2002 or the atrocities that dawned on
the world in 1945. The Bill will be viewed as a fundamental change to a right
that has been entrenched in criminal law for centuries and not just a
response which might be seen as appropriate to great loss of lives in acts of
war or terror. In my view some time frame for the charging and/or some
statement about exhausting the criminal process in the jurisdiction where
the crime was committed might need to be considered.
• The Bill does not provide for like penalties for persons charged in Australia
under State law. The Bali bombing provisions were, according to the
Attorney General’s submission, designed to complement gaps in terrorism
legislation. Of course the problem with that Submission is that, by definition,
the offences were not terrorism offences anyway if a prosecution under the
original Act was instigated – it was to pick up where terrorism charges could
not occur. This means that penalties were always intended to be greater
than corresponding State penalties for non-terrorism offences. However, it
might be that the Bill could simply amend the penalty clause by providing, in
addition to the extension of the application, an amendment that enables a
court to apply the equivalent sentencing principles.
• The Bill and the Explanatory Memorandum are silent on the need to be
satisfied that no prosecution is intending to/could occur in the place of the
crime before a prosecution under the Bill could occur. This can be dealt with
11
by consideration of the amending the Bill with limiting application.
• The Bill does not deal with the admissibility of evidence obtained outside its
jurisdiction and who has the power to obtain and retain such evidence. I
note in the case discussed the police were given extraordinary latitude in
Brunei and that SA resources were spent on the investigation. I doubt that
in jurisdictions refusing or unable to pursue a prosecution for harm done to
an Australian such cooperation would normally be forthcoming. One has to
only contemplate the difficulty the Australian Police are having in Europe at
the moment attempting to gather evidence from the Malaysian Airlines
Crash.
44. While examples do not always assist in determining the need to limit or extend
proposed changes it seems that the Bill could result in the following;
• A prosecution in Australia of a person who had committed a crime
elsewhere where the victim was an Australian citizen or resident and where
the foreign country was seeking deportation of the suspect. This could be
done, for example, to avoid a harsher penalty in that foreign nation and
once a conviction occurred in Australia a defence of autrefois convict would
apply and deportation would be avoided.
• Persons could be convicted in Australia in relation to acts that have
occurred 70 or more years ago and not in a war context. While
philosophically I, as a human rights lawyer, would see no distinction
between that occurring and charging war criminals in 1945, I can see that it
still poses an argument for those seeking to be critical of the scope of the
Bill. The difficulty in defending such a charge would be obvious. Witnesses
have died or are not able to be located; evidence lost; the expense of travel
to the foreign country by either the accused or investigators would be
12
prohibitive.
• The other factors such as the ability of a defendant to secure defence
evidence, the amount of time that has passed, the seriousness of the crime
are all factors that a Court should take into account in determining whether
it would be just to allow the prosecution to proceed. I would prefer that the
Bill provide statutory guidance to factors that a Court should take into
account in allowing a prosecution to proceed. This would be consistent with
other Articles of the ICCPR which prescribe for fair trials and the right to be
heard.
Other Factors including likely challenges to the lawfulness of a prosecution.
45. I do not intend to provide an opinion as to the likely outcome of a legal challenge to
a prosecution brought as a result of this change as this goes beyond the scope of
what I was asked to consider. However, by examining the arguments that the State
is likely to face it will assist in understanding the human rights principles which are
likely to be considered by any court of review and may provide some assistance to
the debate.
46. It is likely that anyone charged as a result of the change in the law would challenge
the lawfulness of the charge. There are few cases involving such challenges to
legislation; but all that have reached the High Court have erred on the side of the
State2.
47. As said earlier my opinion is consistent, in my view, with the rationale of the High
Court in Polyukhovich. I accept that the Bill is broader than extending the power to
charge war criminals from the World War II living in Australia as residents or citizens
with offences that occurred during a distinct event over a six year period. It is my
view, however, that the rationale for the justification of the High Court applies equally
2 There have been challenges to the lawfulness of Parliament implementing changes to a sentence through policies which effectively give a person a longer sentence than the sentencing court did.
13
to the scope of the Bill.
48. In the decision of Polyukhovich the High Court considered the constitutionality of the
War Crimes Amendment Act (1998) (Cth). That Act sought to define a war crime as
conduct which took place outside Australia generally. The State sought to prosecute
Mr. Polyukhovich, who was an Australian citizen, with crimes he had committed in
Europe. Each of the Judges in the Court gave different reasons for their support or
rejection of the defendant’s argument about validity. The decision of the High Court
was not unanimous.
49. Mason CJ said at [28],
“It is contended that the powers of Parliament to an act of retrospective or retroactive law dealing with substantive rights or liabilities does not extend to a law which makes past conduct a criminal offence. Such a law, it is said, stands in a very different position. It is suggested that support be found in Blackstone’s Commentary and in the decisions of the Supreme Court of the United States on Art.1, s.9, cl.3 and Art.1, s.10, cl.1 of the United States Constitution for the proposition that such retrospective criminal law is beyond the power of the legislature on the ground that it is an interference with judicial power.”
Mason CJ went onto quote from Blackstone’s Commentary from page 46, explaining
the principle behind rejecting Parliament’s power to allow for charging for
retrospective crimes [49],
“Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before the commencement; which is implied in the term ‘prescribed’.”
Mason CJ went on to note that Blackstone did not say it was beyond the power of
Parliament to enact such a law and reiterated Blackstone’s view was that such
power had to be reasonable. His Honour also pointed out that there was nothing in
the Australian Constitution which prohibited retrospectivity.
50. Brennan J went on to say that for a war crime to be a serious crime and caught by
the Act the offence had to be a serious crime within the law as it existed at that time
14
in Australia. He quoted from the preamble to the Act which says the intention of the
Act is “to bring to trial in the ordinary criminal courts in Australia of persons who
committed serious war crimes in Europe during World War II.” His Honour then said,
[8],
“It is immaterial that, when the relevant act was done, the person who did it was not then an Australian citizen or resident, that no Australian citizen or resident nor any other person under or entitled to protection of Australian law was a victim or likely victim, that the armed conflict in the course of which the act was committed did not involve Australia or that the act was lawful accordingly to the laws of the place where the act was done at the time when it was done. Whether or not any relevant Australian interests was involved when the relevant act was done, is sufficient for the purposes of the Act that the person who did the act became an Australian citizen or an Australian resident. The act is truly retrospective in its operation: that is to say it attaches penalties under Australian municipal law to the doing of an act to which the penalty was not attached when the act was done. Under this Act, the plaintiff is charged with offences allegedly committed in 1942 and 1943 in the Ukraine during Germany’s occupation of that Territory. It is alleged that he wilfully killed a number of people in pursuit of German policies – either a policy of persecuting the Jewish people or those opposed to German policies or a policy of annihilating suspected partisans or communists. The plaintiff was not then an Australian citizen or resident. If the allegation is made and the charges be true, the plaintiff was guilty of heinous offences against the laws of the Ukraine against the laws and customs of war but he is not charged with offences against the law of the Ukraine nor, as we shall see, with offences against the laws and customs of war. He is charged with offences against the municipal law of Australia, created by section 9 of the Act. The validity of the Act depends upon the legislature power of the Parliament to create the offence defined by the Act and to vest jurisdiction in Australian courts to try persons charged with that offence. As the Act is retrospective in its operation, I assume that the defendants will seek constitutional support for the Act…”
Brennan J also quoted from Halsbury’s Laws of England, [36]
“International law recognises certain international crimes in respect of which any country may exercise criminal jurisdiction regardless of the citizenship or residents of the alleged offender or the place where the offence was committed…”
His Honour also said [45] and [48]
“It is one thing to vest in a municipal court jurisdiction to administer the law of nations, albeit that that law is adopted by the municipal law. It is another thing to vest jurisdiction to administer municipal law that does not correspond with international law. The real objection to the validity of the
15
Act is that the Act rejects international law as the governing law for the trial as the governing law for the trial of persons allegedly guilty of war crimes and adopts a municipal law definition which operates retrospectively. That retrospectivity denies to the Act the capacity to satisfy an international obligation or to meet an international concern or to confer a universal jurisdiction recognised by international law.” ….“Thus international law not only refuses to countenance retrospective provisions in international criminal law; it condemns as offensive to human rights retrospective municipal criminal law imposing a punishment for crime unless the crime was a crime under international law at the time when the relevant act was done. It follows that there can be no international obligation to enact a municipal law to attach a penalty to past conduct unless that conduct, at the time when it was engaged in, was a crime under international law. International concerns must be qualified in like manner.”
His Honour went onto conclude that section 9 of the War Crimes Act 1945 would be
invalid.
51. Deane J went onto consider the retrospectivity of the prosecution. He said at [59]
“The critical question upon the answer to which this judgment turns is ultimately one of abstract constitutional law. It is whether the Commonwealth parliament possesses power to legislate that a ‘person…is guilty’ of a crime against Commonwealth law if, in the past, he has done some specified thing which was not, when done, such a crime. That question must, in my view, be answered in the negative for the reason that a law which declares that a person ‘is guilty’ of a crime against a law of the Commonwealth if he has done an act which did not, when done, in fact contravene any such law is inconsistent with Chapter III of the Constitution. Both in substance and in form, the central operation of the Act is as such a legislative declaration of criminal guilt. It prohibits nothing, prescribes no rule of conduct and is incapable of being contravened since, by its terms, it is inapplicable to acts committed after its enactment. As I have endeavoured to explain, it is not to the point that the Act identifies a ‘person’ whom it declares to be ‘guilty’ of past crimes against the law of the Commonwealth not by name but, in the case of the plaintiff, by reference to whether, within a long past period and in another country, he did an alleged act which was not such a crime when done and which is never, if done where it was allegedly done, been prohibited by any applicable law of the Commonwealth, including the Act. Nor is it to the point that the operation of the Act to declare that such a person ‘is guilty’ of such a past crime is obscured by the requirement of a trial to determine whether a particular accused is in fact such a person. What is to the point for the purposes of the present case is the combined effect of two propositions which are basic to the criminal jurisprudence of this country. The first of those propositions is almost a truism. It is that criminal guilt, under our system of law, means being guilty of a contravention of the requirements of a then existing and applicable penal law: a crime is, as Blackstone wrote (see above), ‘an act committed, or omitted, in violation of a public law, either forbidding or commanding it’. That proposition lies at the heart of Lord Atkin's comments in the Proprietary Articles Case (see above) when he wrote that criminal law ‘connotes only the quality of such acts or omissions as are prohibited
16
under appropriate penal provisions’ and that the ‘criminal quality of an act’ cannot ‘be discovered by reference to any standard but one: Is the act prohibited with penal consequences?" The second of those two propositions is that the function of determining whether a person is in fact guilty of a crime against a law of the Commonwealth is a function which appertains exclusively to, and which cannot be excluded from, the judicial power which our Constitution vests solely in the courts which it designates. That being so, it is beyond the competence of the Parliament to declare, as s.9 (1) of the Act purports to do, that a ‘person...is guilty’ of a crime against a law of the Commonwealth by reason of having committed a past act which did not, when done, contravene any applicable Commonwealth law and was therefore not in fact such a crime.”
52. Dawson J, consistent with the view of the Chief Justice, found that the fact that the
law operates on the past conduct of persons who, at the time of the commission of
that offence had no connection with Australia, does not in any way detract from its
character as a law with respect to the external affairs power under the Constitution.
His Honour discussed the unusual nature of war crimes at [18],
“However, the ex post facto creation of war crimes may be seen to be justifiable in a way that is not possible with other ex post facto criminal laws, particularly where the conduct proscribed would have been criminal conduct had it occurred within Australia. The wrongful nature of the conduct ought to have been apparent to those who engaged in it even if, because of the circumstances in which the conduct took place, there was no offence against domestic law. And, of course, if the conduct amounted to genocide or a crime against humanity, that comment would be the stronger. This justification for a different approach with respect to war crimes is reflected in the International Covenant on Civil and Political Rights to which Australia became a signatory on 18 December 1972. Article 15(1) of that Covenant forbids the ex post facto creation of criminal offences, but Article 15(2) provides: ‘Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.’ Because of the view which I take of the external affairs power, I have no need to enter upon the question whether before 1945 genocide or crimes against humanity constituted offences under customary international law; it is sufficient to observe that, even if they did not, the wrongful nature of the conduct would nevertheless have been plainly evident. War crimes of the kind created by the Act simply could not, in any civilized community, have been described as innocent or blameless conduct merely because of the absence of proscription by law.”
53. Toohey J also supported the majority view that the Act was valid. He considered the
Act consistent with the State’s exercise of the Constitution’s external powers. His
Honour was concerned with the nature of the crime at the time it was committed and
17
whether it was a known international crime. He said [47],
“There was no international agreement creating a crime against humanity (in 1945). If the crime existed, it was a matter of customary law. A customary law comprises two elements: (i) general practice by states; and (ii) opinio juris, in other words, expressed opinion that such a crime exists. Material sources produced before 1945 are evidence of both of these elements; those produced after 1945 are evidence of opinio juris only, as they are statements of opinion as to the state of international law in the past. A survey of the material is useful.”
His Honour went onto consider pre-1939 works including the Hague Convention and
Acts from other member States which had enacted similar legislation; Israel, Canada
and the UK. He concluded that before 1939 there was a consciousness of acts
which offended fundamental human rights which may be called crimes against
humanity at [69].
He went onto say [70],
“It follows that, at the relevant time, conduct which amounted to persecution on the relevant grounds, or extermination of a civilian population, including a civilian population of the same nationality as the offender, constituted a crime in international law only if it was proved that the conduct was itself a war crime or was done in execution of or in connection with a war crime.”
He further said that the allegations against the accused in Mr. Polyukhovich’s matter
were sufficient to amount to a war crime as well as a crime against humanity. He
said [103] [105], and [106]
“I do not accept the submission of the Commonwealth in the absolute terms in which it was proffered. In legislation, judicial decisions and statements of principles, both of municipal and international law, there has emerged a general abhorrence of retroactive criminal law. The notion that there should be no crime or punishment, except in accordance with law, was recognised as early as 1651, when Hobbes wrote:
‘No law, made after a fact done, can make it a crime…For before the law, there is no transgression of the law:’…”
…. “In international law the principle of non-retroactivity is enshrined in Article 15(1) of the International Covenant on Civil and Political Rights (1966), which reads, inter alia:
‘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’.”
18
…. “All these general objections to retroactively applied criminal liability have their source in a fundamental notion of justice and fairness. They refer to the desire to ensure that individuals are reasonably free to maintain control of their lives by choosing to avoid conduct which will attract criminal sanction; a choice made impossible if conduct is assessed by rules made in the future…Laws should function to give reasonable warning of their operation and permit individuals to rely on that scope and meaning until expressly altered. Another nineteenth-century rationale for the principle was expressed in terms of specific deterrence: ‘The reason why these laws are so universally condemned is, that they overlook the great object of all criminal law, which is, to hold up the fear and certainty of punishment as a counteracting motive, to the minds of persons tempted to crime, to prevent them from committing it. But a punishment prescribed after an act is done, cannot, of course, present any such motive’: Jacquins v The Commonwealth (1852) 63 Mass 279’.”
His Honour also found that Chapter III of the Constitution was not offended by any
retrospective law. His Honour concluded [116],
“There is an element of risk in attempting to summarise the contents of any judgment. But, having regard to the length of this judgment and the range of issues it canvasses, there is some justification for making the attempt. What follows is a summary of the judgment; it need hardly be said that the summary cannot be divorced from the context in which it appears. 1. The power of the Parliament to make laws with respect to ‘External
affairs’…includes a power to make laws with respect to matters external to Australia which touch or concern Australia in some way.
2. The Act is a law with respect to a matter external to Australia, touching or concerning the national interest of Australia, insofar as it relates to conduct occurring outside Australia arising from ‘war’ as defined.
3. There is insufficient evidence of any international obligation to seek out
war criminals and bring them to trial to support the Act as an exercise of the external affairs power.
4. Likewise, there is insufficient evidence of any international concern that
war criminals be tried in countries other than those in which their crimes were committed to support the Act as an exercise of the external affairs power.
5. The power of the Parliament to make laws with respect to ‘External
affairs’ includes a power to make laws with respect to international crimes which are subject to the universal jurisdiction.
6. The Act is a law with respect to external affairs insofar as it is an
exercise of the universal jurisdiction to prosecute war crimes and crimes against humanity as formulated in international law at the relevant time.
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7. The Act cannot be supported by reference to the defence power in…the Constitution.
8. The validity of the Act may be tested against the requirements of
Chapter III of the Constitution, that is, the Act must not call for an exercise, by a court to which the Chapter applies, of what is not truly judicial power.
9. In its application to the information against the plaintiff, the Act does not
offend Chapter III of the Constitution.” 54. Gaudron J held that the Act was invalid. She said [24]
“The first and most unusual feature of the offence created by s.9 of the Act is that it is confined to past conduct and, it is common ground, to conduct which, at the time of its commission, was not subject to any law of this country. In particular, it was not then governed by the criminal law of this country and, thus, could not then form the basis of a criminal prosecution in this country.”
She went onto say [36],
“Equally, it would be a travesty of the judicial process if, in proceedings to determine whether a person had committed an act proscribed by and punishable by law, the law proscribing and providing for punishment of that act were a law invented to fit the facts after they had become known. In that situation, the proceedings would not be directed to ascertaining guilt or innocence (which is the function of criminal proceedings and the exclusive function of the courts), but to ascertaining whether the Parliament had perfected its intention of declaring the act in question an act against the criminal law. That is what is involved if a criminal law is allowed to take effect from some time prior to its enactment. Of course, the position is different if the law re-enacts an earlier law which applied when the acts were committed. At least that is so to the extent that that earlier law has not been brought to bear on conduct falling or alleged to fall within it. In this regard, it is sufficient to state that, in my view, a law would not be a law re-enacting an earlier law if it purported to apply cumulatively upon it. And the position is different again in the case of a law which acts retrospectively upon civil rights, obligations or liabilities. The function of a court in civil proceedings is the determination of present rights, obligations or liabilities. In that context, a retrospective civil law is very much like a statutory fiction in that it is a convenient way of formulating laws which, by their application to the facts in issue, determine the nature and extent of those present rights, obligations or liabilities.”
Her Honour distinguished the case of Kidman v The Queen3 (a 1915 case which
concerned the prosecution of an offender for a past act of fraud, but where the fraud
would have been a common law offence at the time that it was in fact committed).
The definition from Kidman’s case, which Gaudron J quoted from, says that a
3 (1915) 20 CLR 425.
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retroactive law is a
“…law by which, after an act has been committed which was not punishable…at the time it was committed, the person is declared to have been guilty of a crime and to be held liable for punishment”.
Gaudron J went onto find that the War Crimes Act was not a re-enactment or
reproduction of an earlier law, pointing to the fact that the defendants showed that
the rules of international law with respect to war crimes and crimes against humanity
at that time were, in any event, not reproduced in the Act.
55. Finally, McHugh J found that although the Act penalized conduct which occurred
outside Australia it was validly enacted pursuant to the external affairs power of the
Constitution. He said [11],
“Accordingly, the terms ‘external affairs’ should be interpreted to include any matter, thing, event or relationship existing or arising or which might exist or arise outside Australia…is not confined, therefore, to the making of laws authorising arrangements with other nations or implementing arrangements properly entered into other nations…Nor is it confined to affairs which concern Australia's relations with other countries or affect Australia's standing of the community of nations or which have some recognisable connection with Australia.” A law which punishes an Australian resident or citizen in respect of conduct occurring outside Australia is a law for the peace, order and good government of the Commonwealth with respect to ‘external affairs’. Thus, in so far as the Act operates in respect of ‘war crimes’ committed by Australian residents or citizens outside Australia, it would have been validly enacted under the external affairs power if it had been enacted on 1 September 1939. On that hypothesis, the Act would have operated prospectively to punish Australian citizens and residents in respect of conduct occurring outside Australia with respect to a war occurring in Europe. The critical question, however, is whether the retrospective operation of the Act means that it is not a law with respect to external affairs even though the Act punishes conduct which has occurred outside Australia.
56. Those Judges supporting the legislation in Polyukhovich took into account that the
War Crimes Amendment Act provided a number of protections for defendants in
challenging the prosecution.
57. The grounds for the dissenting judges to support the defendant’s argument turned on
the existence of the offence at the time; not the issue of retrospectivity.
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Summary
58. In conclusion, I support the injustice that the Bill is addressing; namely the inability to
charge the suspect for the murder of Ms. Bradshaw-Hall. In my view the Bill is
consistent with support for the rights of victims within the justice system. The Bill is
extremely wide in its application however and provides for no guidance in relation to
the court’s discretion. In my view it would be preferable for the Bill to also include
(a) A specific time period that it applies to,
(b) Clarify that prosecutions can only occur if the authorities where the crime was
committed fail to charge a suspect,
(c) Allowing only a prosecution to proceed if the defendant is able to have a fair
trial taking into account but not limited to,
(i) The time since the offence occurred,
(ii) The ability of the accused person to obtain exculpatory evidence and/or
challenge implicating evidence,
(iii) The ability of the accused to have access to, for forensic and other
purposes, exhibits, witnesses etc., in circumstances where the integrity
of the exhibits has not been compromised,
(iv) The defendant’s ability to locate and/or call relevant witnesses to prove
his/her innocence,
(d) If the crime was a crime in Australia and in the country where the offence
occurred at the time of its commission,
(e) It shall be a complete bar to a prosecution if an accused has faced trial in any
country for the same act regardless of the charge and regardless of the
outcome. This does not apply as a complete bar if charges were withdrawn -
but the withdrawal and the reason for it shall be taken into account by the Court
to determine if a charge should be permitted to proceed.
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(f) A charge cannot be laid under the Act to prevent the attempted deportation of a
suspect to the county where the offence occurred.
Claire O'Connor
1 August 2014
Appendix 1
Public submissions
1 Dr Patrick Emerton
2 Rule of Law Institute of Australia
3 Commonwealth Attorney-General's Department
4 Department of Foreign Affairs and Trade
5 Professor Ben Saul and Ms Kathleen Heath