Addendum to the Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)Statement of Compatibility with Human Rights
Schedule 5-Protecting vulnerable persons
On page 27, in paragraph 141, after the dot point: "the right to a fair trial-Article 14 of the ICCPR", delete the conjunction ", and" and insert the following new dot point:
"prohibition on retrospective criminal laws-Article 15 of the ICCPR, and".
On page 28, after paragraph 146, insert the following new paragraphs:
"Prohibition on retrospective criminal laws-Article 15 of the ICCPR
Article 15 of the ICCPR prohibits the retrospective operation of criminal laws. This prohibition does not generally extend to retrospective changes to other measures, such as procedure, provided they do not affect the punishment to which an offender is liable.
Schedule 5, Item 4 is an application provision which proposes the existing non-publication offence contained in section 15YR of the Crimes Act apply in relation to proceedings instituted after the commencement of Schedule 5, regardless of when the offences committed, or alleged to have been committed, occurred.
While this will mean the protections may apply in proceedings for conduct committed prior to the commencement of Schedule 5, the provision does not affect the elements or penalties of any offence, nor does it criminalise or penalise conduct which was otherwise lawful prior to the commencement of Schedule 5. Therefore, Schedule 5, Item 4 does not engage the prohibition on retrospective criminal laws."