Legal and Constitutional Affairs Legislation Committee€¦ · The Senate Legal and Constitutional...

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

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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]

mailto:[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.


5 Journals of the Senate, No. 78, 12 February 2015, p. 2158; Journals of the Senate, No. 99,

22 June 2015, p. 2744.


7 Criminal Code Amendment (Offences Against Australians) Act 2002.

http://www.aph.gov.au/senate_legalcon

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.



http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r1680

http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r1680

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,




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.


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


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







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



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.



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).


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


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

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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.

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• 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.

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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.

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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

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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

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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

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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

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