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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE
AMENDMENT (OFFENCES AGAINST
AUSTRALIANS) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Justice and Customs
Senator the Honourable
Chris Ellison)
Criminal Code Amendment (Offences Against Australians) Bill
2002
General Outline
This Bill inserts new provisions
into the Criminal Code Act 1995 to make it an offence to murder, commit
manslaughter or intentionally or recklessly cause serious harm to an Australian
where that conduct occurs outside of Australia.
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 offences will complement the existing
terrorism legislation, and will provide a prosecution option where perpetrators
are unable to be prosecuted under the terrorism legislation.
Financial
Impact
There is no financial impact flowing directly from the offence
provisions of this Bill. Should a person be prosecuted under these provisions,
the costs associated with any extradition proceedings and the prosecution would
be absorbed within existing budgets.
Abbreviations used in the
Explanatory Memorandum
Criminal Code Criminal Code Act
1995
NOTES ON CLAUSES
Clause 1 Short title
This is a formal clause which
provides for the citation of the Bill.
Clause 2
Commencement
This clause set out when the various parts of the Bill
commence.
Sections 1-3 of the Bill (the short title, the commencement
and the schedules provision) will commence on the day that the Bill receives
Royal Assent.
Schedule 1 of the Bill, which contains the offences and
other amendments to the Criminal Code Act 1995, will commence
retrospectively from 1 October 2002.
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.
Clause 3
Schedule(s)
This clause makes it clear that Schedule 1 will amend the
Criminal Code Act 1995 in accordance with the provisions set out in that
Schedule.
SCHEDULE 1 – AMENDMENTS
Criminal Code Act 1995
Item 1 The
Schedule
The offences in the Criminal Code Act 1995 are
contained in a Schedule (the Criminal Code). This Item amends that
Schedule by adding new Part 5.4 which in turn contains Division 104, both headed
Harming Australians. Division 104 contains offences criminalising the murder,
manslaughter or causing of serious harm to an Australian citizen or resident
where that conduct occurs outside of Australia.
All serious offence
provisions are included in the Criminal Code for convenience. The
Criminal Code contains the general principles by which offences are
interpreted, as well as ancillary offences (such as conspiracy and common
purpose) which will apply alongside the new offences in Part 5.4. The policy
of placing the serious offences together this way is not only a feature of the
Commonwealth Criminal Code, but also the legislation of most
jurisdictions throughout the world. It is also a feature of the Model Criminal
Code which was developed by the Commonwealth, States and Territories.
Fatal
and non-fatal offences against the person were considered by the Model Criminal
Code Officers Committee in 1998. The offences in this Bill are based on those
considerations.
Proposed section 104.1 Murder of an Australian
citizen or a resident of Australia
As a general rule fatal and
non-fatal offences against the person are governed by State and Territory laws,
and the Commonwealth does not have a legislative role. State and Territory laws
usually apply to offences which occur within their jurisdiction, with some
limited extraterritorial application.
The offences in proposed Division
104 will not encroach on the existing State and Territory laws about murder,
manslaughter and causing serious harm. The Division creates new offences which
will only apply extraterritorially – that is, where the relevant conduct
is engaged in outside of Australia. If there is any overlap with other
Commonwealth or State or Territory laws, proposed section 104.5 makes it clear
that Division 104 does not intend to override those laws.
There are 3
physical elements which must be present for the offence of murder in proposed
section 104.1 to be committed.
Subparagraph 104.1(1)(a) provides that a
person must engage in conduct outside of Australia. By application of the
default fault elements in section 5.6 of the Criminal Code, the fault
element of intention will attach to that physical element – meaning that a
person will have to intentionally engage in the conduct.
Subparagraph
104.1(1)(b) provides that the conduct intentionally engaged in by the person
must cause the death of another person. Subparagraph 104.1(1)(d) supplies the
fault elements for this physical element. Taken together, those provisions mean
that the person must intentionally engage in conduct causing the death of
another person, either intending that conduct to cause the death of an
Australian citizen or resident or any other person, or being reckless as to that
conduct causing the death of one of those people.
Subparagraph
104.1(1)(c) provides that the person whose death is caused by the other
person’s conduct must be an Australian citizen or a resident of Australia.
This limb of the offence does not contain substantive elements which should be
present for the offender to be culpable for murder. Instead, it limits the
scope of the offence so that it applies only where the person whose death is
caused is an Australian citizen or resident. Comparable State and Territory
offences do not contain provisions like 104.1(1)(c), as the application of a
particular offence provision in that instance is determined according to in
which part of Australia the offence occurred.
Because of the nature of
the element in subparagraph 104.1(1)(c), absolute liability has been
specifically applied to that subparagraph (see subsection 104.1(2)). This means
that it will not be necessary for the prosecution to prove a fault element in
relation to that particular physical element, and that the defence of mistake of
fact will not be available to the defence. It will still be necessary to show
that the person was in fact an Australian citizen or resident at that particular
time.
The maximum penalty for this offence is life imprisonment.
Proposed section 104.2 Manslaughter of an Australian citizen or a
resident of Australia
As with the murder offence in proposed section
104.1, there are 3 physical elements which must be present for the offence of
manslaughter in proposed section 104.2 to be committed. The offence is
structured slightly differently to the murder offence to take into account the
different fault elements which apply to manslaughter.
Subparagraph
104.2(1)(a) provides that a person must engage in conduct outside of Australia.
By application of the default fault elements in section 5.6 of the Criminal
Code, the fault element of intention will attach to that physical element
– meaning that a person will have to intentionally engage in the
conduct.
Subparagraph 104.2(1)(b) provides that the conduct intentionally
engaged in by the person must cause the death of another person. Subparagraph
104.2(1)(d) supplies the fault elements for the physical element in subparagraph
104.2(1)(b). Taken together, the provisions mean that the person must
intentionally engage in conduct which causes the death of a person, either
intending that conduct to cause serious harm to an Australian citizen or
resident or any other person, or being reckless as to a risk that the conduct
will cause serious harm to one of those people.
Whilst the result of each
offence – the death of a person – is the same, the fault elements
which apply to the conduct which caused that death differ between the murder and
manslaughter offences. This is the primary point of difference between the
murder and manslaughter offences, and the application of different fault
elements is reflected in the different maximum penalty which applies to each
offence. The maximum penalty for the offence of manslaughter is 25 years
imprisonment.
As the physical element in 104.2(1)(b) is a result, one
possible interpretation of the provision would be to apply the default fault
element of recklessness to that physical element, and take the fault elements in
subparagraph 104.2(1)(d) as separate or additional elements. To avoid this
possible interpretation, subsection 104.2(2) applies absolute liability to
paragraph 104.2(1)(b), so the default fault element of recklessness cannot
attach. Instead those fault elements specified in 104.2(1)(d) will
apply.
Subparagraph 104.2(1)(c) provides that the person whose death is
caused by the other person’s conduct must be an Australian citizen or a
resident of Australia. As with the murder offence, this limb of the offence
does not contain substantive elements which should be present for the offender
to be culpable for manslaughter. Instead, it limits the scope of the offence so
that it applies only where the person whose death is caused is an Australian
citizen or resident.
Because of the nature of the element in
subparagraph 104.2(1)(c), absolute liability has been specifically applied to
that subparagraph (see subsection 104.2(2)). This means that it will not be
necessary for the prosecution to prove a fault element in relation to that
particular physical element, and that the defence of mistake of fact will not be
available to the defence. It will still be necessary to show that the person
was in fact an Australian citizen or resident at that particular
time.
Proposed section 104.3 Intentionally causing serious harm to an
Australian citizen or a resident of Australia
As with the murder and
manslaughter offences, there are 3 physical elements which must be present for
the offence of intentionally causing serious harm to be committed.
Subparagraph 104.3(1)(a) provides that a person must engage in conduct
outside of Australia. By application of the default fault elements in section
5.6 of the Criminal Code, the fault element of intention will attach to
that physical element – meaning that a person will have to intentionally
engage in the conduct.
Subparagraph 104.3(1)(b) provides that the conduct
intentionally engaged in by the person must cause serious harm to another
person. Subparagraph 104.3(1)(d) supplies the fault element for this physical
element. Taken together, the provisions mean that the person must intentionally
engage in conduct which causes serious harm to a person, intending that the
conduct will cause serious harm to an Australian citizen or resident or any
other person.
Subparagraph 104.3(1)(c) provides that the person to whom
serious harm is caused by the other person’s conduct must be an Australian
citizen or a resident of Australia. As with the murder and manslaughter
offences, this limb of the offence does not contain substantive elements which
should be present for the offender to be culpable for causing serious harm.
Instead, it limits the scope of the offence so that it applies only where the
person to whom serious harm is caused is an Australian citizen or resident.
Because of the nature of the element in subparagraph 104.3(1)(c),
absolute liability has been specifically applied to that subparagraph (see
subsection 104.3(2)). This means that it will not be necessary for the
prosecution to prove a fault element in relation to that particular physical
element, and that the defence of mistake of fact will not be available to the
defence. It will still be necessary to show that the person was in fact an
Australian citizen or resident at that particular time.
The maximum
penalty for this offence is 20 years imprisonment.
Proposed section
104.4 Recklessly causing serious harm to an Australian citizen or a resident of
Australia
As with the murder and manslaughter offences, there are 3
physical elements which must be present for the offence of recklessly causing
serious harm to be committed.
Subparagraph 104.4(1)(a) provides that a
person must engage in conduct outside of Australia. By application of the
default fault elements in section 5.6 of the Criminal Code, the fault
element of intention will attach to that physical element – meaning that a
person will have to intentionally engage in the conduct.
Subparagraph
104.4(1)(b) provides that the conduct intentionally engaged in by the person
must cause serious harm to another person. Subparagraph 104.4(1)(d) supplies
the fault element for this physical element. Taken together, the provisions
mean that the person must intentionally engage in conduct which causes serious
harm to a person, reckless as to that conduct causing serious harm to an
Australian citizen or resident or any other person.
Subparagraph
104.4(1)(c) provides that the person to whom serious harm is caused by the other
person’s conduct must be an Australian citizen or a resident of Australia.
As with the murder and manslaughter offences, this limb of the offence does not
contain substantive elements which should be present for the offender to be
culpable for causing serious harm. Instead, it limits the scope of the offence
so that it applies only where the person to whom serious harm is caused is an
Australian citizen or resident.
Because of the nature of the element in
subparagraph 104.4(1)(c), absolute liability has been specifically applied to
that subparagraph (see subsection 104.4(2)). This means that it will not be
necessary for the prosecution to prove a fault element in relation to that
particular physical element, and that the defence of mistake of fact will not be
available to the defence. It will still be necessary to show that the person
was in fact an Australian citizen or resident at that particular
time.
The maximum penalty for this offence is 15 years
imprisonment.
Proposed section 104.5 Saving of other
laws
This provision makes it clear that the offences in Division 104
will not limit the operation of any other offences which may apply to the same
conduct. For example, in some circumstances the existing terrorism laws (which
also have extraterritorial application) may apply to the same conduct to which
these offences would apply. Proposed section 104.5 ensures that where there are
two or more offences covering the same conduct the most appropriate offence is
able to be prosecuted.
Proposed section 104.5 also ensures that any State
or Territory law which would otherwise apply still has application. This is
important, as offences against the person are generally offences which are the
responsibility of the States and Territories.
Proposed section 104.6
Bringing proceedings under this Division
Proposed subsection 104.6(1)
provides that prosecution proceedings for an offence against one of the
provisions in Division 104 may only be taken with the written consent of the
Attorney-General. The consent of the Attorney-General is an important
safeguard, and ensures that all relevant factors are taken into account before
the unusual step of prosecuting an offence which substantially occurred outside
of Australia is taken.
Proposed subsection 104.6(2) makes it clear that
whilst prosecution proceedings may not proceed without the consent of the
Attorney-General, preliminary measures such as arresting and charging the person
may still occur. This subsection ensures that arrest, charge and remand, which
may require urgent action, are not prevented because of the need to gain the
Attorney-General’s written consent. It is clear from this section that an
investigation may be instituted or continue even if the consent of the
Attorney-General for the prosecution proceedings has not yet been obtained.
Proposed section 104.7 Ministerial certificates relating to
proceedings
The offences in proposed sections 104.1–104.4 will
only apply where the person killed or injured is an Australian citizen or
resident of Australia. Therefore in any prosecution under those provisions it
will be necessary to show that the person was at the relevant time either an
Australian citizen or a resident of Australia. Proposed section 104.7 enables
the Minister who administers the Australian Citizenship Act 1948, the
Minister who administers the Migration Act 1958 or the Minister who
administers the Passports Act 1938 to issue a certificate stating that
the person is or was an Australian citizen or resident at the particular time.
The reference to multiple Ministers is necessary, as there is no single
Minister who would be able to issue a certificate about citizenship or resident
status in each circumstance. For example, the Minister who administers the
Australian Citizenship
Act 1948 is more likely to be able to
issue a certificate about a person who became an Australian citizen by applying
under the provisions of that Act than a person who has citizenship because he or
she was born in Australia. Similarly, the Minister who administers the
Migration Act 1958 would be best placed to issue a certificate about a
person’s residential status. Further, as the provisions of this Bill only
apply to conduct which occurs overseas, it is likely that an Australian citizen
killed or injured by that conduct would have been overseas on an Australian
passport. In those circumstances, the Minister responsible for the Passports
Act 1938 may be able to issue a certificate.
The relevant Minister
has a discretion as to whether he or she issues such a certificate. The
certificate will be prima facie evidence of that matters set out in that
certificate, and therefore rebuttable.
Proposed section 104.8
Geographical jurisdiction
Part 2.7 of the Criminal Code
provides general jurisdictional provisions, including provision for
extraterritorial application of offences in the Criminal Code. Part 2.7
also provides for specific categories of extended geographical jurisdiction (see
sections 15.1 to 15.4).
The offences in Division 104 apply a modified
form of the extended jurisdiction provided for in section 15.4 (‘Category
D’ jurisdiction), which enables an offence to operate whether or not the
conduct occurs in Australia or overseas, and whether or not the result of that
conduct occurs in Australia or overseas. The Category D jurisdiction is
modified by each of the offence provisions, which expressly state that the
offences apply only where the conduct is engaged in outside of
Australia.
As the jurisdiction is modified, it would not be sufficient
for the provision to simply state that Category D jurisdiction applies.
Proposed section 104.8 sets out the modified extended jurisdiction and how it
applies to both the primary and ancillary offence provisions.
Proposed
paragraph 104.8(a) provides that where conduct under provisions
104.1-104.4 occurs overseas, the offences will apply regardless of whether the
results of that conduct – that is, the death or serious injury –
occurs overseas or in Australia. This is consistent with paragraph 15.4(b) of
the Criminal Code.
Proposed paragraph 104.8(b) sets out how the
elements of the ancillary offences will apply. The ancillary offences of
attempt, complicity, common purpose, innocent agency, incitement and conspiracy
are set out in Division 11 of the Criminal Code, and will apply in
relation to the offences in this Bill. Proposed paragraph 104.8(b) provides
that where the conduct to which the ancillary offence relates occurs outside of
Australia (that is, the primary offence), it does not matter if the conduct
which actually constitutes the ancillary offence (for example, conspiracy to
commit the primary offence) occurs inside or outside of Australia.
Applying the modified Category D jurisdiction, the proposed offences
will apply where a person engages in conduct overseas which results in the death
of or serious injury to an Australian citizen or resident, regardless of whether
that Australian citizen or resident was injured or died in Australia or
overseas. If the perpetrator (‘P’) had conspired with another
person (‘C’) to commit that offence, ‘C’ could be
charged with conspiracy to commit that offence, even if ‘C’ was in
Australia at the time the offence occurred.
Proposed section 104.9
Meaning of causes death or harm
Proposed section 104.9 establishes
that a person can be said to have ‘caused’ the death of or harm to a
person where that person’s conduct can be said to have substantially
contributed to the death or harm.
This definition is taken from the Model
Criminal Code Officers Committee discussions on fatal and non-fatal offences
against the person. The definition reflects existing common law principles
which are well defined in cases such as Hallett [1969] SASR 141 and
Royall (1991) 172 CLR 378. The same definition is used in Division 71 of
the Criminal Code, which contains fatal and non-fatal offences against
United Nations and associated personnel.
‘Death’ and
‘serious harm’ are both defined in the Dictionary (Chapter 10 of the
Criminal Code).