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2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
CRIMINAL CODE AMENDMENT (HARMING AUSTRALIANS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Xenophon)
CRIMINAL CODE AMENDMENT (HARMING AUSTRALIANS) BILL 2013
Explanatory Memorandum
OUTLINE
This Bill extends existing provisions under the Criminal Code Act 1995 that make it an offence to
harm Australians overseas. The original provisions were introduced in October 2002, following the
terrorist bombing of two Bali nightclubs (the `Bali bombings'). The aim of these provisions was to
allow for prosecution of individuals who harm Australians outside Australia (either through murder or
manslaughter, or through intentional or reckless behaviour) to be brought to justice.
These provisions commenced on 1 October 2002, and apply only to offences committed after this
date. 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.
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short Title
This clause is a formal provision and specifies that the short title of the Bill, once enacted, may be
cited as the Criminal Code Amendment (Harming Australians) Act 2013.
Clause 2 - Commencement
This clause provides for the commencement of the Act on the day after the Act receives Royal Assent.
Clause 3 - Object
This clause states that the object of the bill is justice for Australian citizens and residents who were
the victims of violent crimes committed before 1 October 2002 outside Australia.
Clause 4 - Schedule(s)
This clause states that each Act specified within a Schedule to this Bill is amended or repealed as set
out by the provisions of the Bill.
Schedule 1 - Amendments to Criminal Code Act 1995
Item 1 amends paragraphs 115.1(1)(b), 15.2(1)(b), 115.3(1)(b) and 115.4(1)(b) of the Criminal Code
to apply the provisions in those paragraphs to situations that occurred before, on or after the
commencement of Division 115. The impact of this 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.
Item 2 clarifies that the amendments made by this Schedule apply to conduct that occurs at any time,
whether it is before, on, or after the commencement of the 1 October 2002 amendments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
CRIMINAL CODE AMENDMENT (HARMING AUSTRALIANS) BILL 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill amends the offences contained in Division 115 of the Criminal Code Act 1995 to allow
application of these offences to conduct that occurred before 1 October 2002 (the commencement of
Division 115). As such, this will allow a person who is suspected of harming an Australian resident or
citizen before this date to be prosecuted under this Division.
Human rights implications
This Bill engages human rights relating to justice and criminal laws, principally the right to a fair trial
and fair hearing rights, presumption of innocence, minimum guarantees in criminal proceedings, and
the prohibition on retrospective criminal laws.
Rights to a fair trial and fair hearing are enshrined in article 14 of the International Covenant on Civil
and Political Rights (ICCPR); the presumption of innocence is contained in article 14(2) of the
ICCPR; and the minimum guarantees in criminal proceedings are contained in article 14(3), (5), (6)
and (7) of the ICCPR. This Bill does not limit or constrain these rights in any way, as the provisions it
amends do not directly relate to enforcement or the justice system.
The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant
on Civil and Political Rights (ICCPR). It is important to note that these provisions, when originally
inserted into the Act through the Criminal Code Amendment (Offences Against Australians) Bill 2002,
were retrospective: the bill was assented to on 14 November 2002, while the provisions commenced
on 1 October 2002. Presumably, this date was selected to ensure the Bali terrorist attacks, which
occurred on 12 October 2002, came under the new provisions.
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.
Conclusion
This Bill is compatible with human rights as it does not limit any existing rights or breach the
prohibition on retrospective criminal laws.