House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

General outline and financial impact statement

General outline

This Bill amends the Criminal Code Act 1995 (Cth) and the Death Penalty Abolition Act 1973 (Cth).

This Bill enacts in the Commonwealth Criminal Code a specific Commonwealth torture offence which would operate concurrently with existing offences in State and Territory criminal laws. The Bill also abolishes the death penalty throughout Australia, by amending the Death Penalty Abolition Act to apply to State criminal laws.

These measures are further described below.

PURPOSE

The purpose of Schedule 1 is to replace the existing offence of torture in the Crimes (Torture) Act 1988 (Cth) (the 1988 Act) with a new offence in the Criminal Code. The new offence is intended to fulfil more clearly and explicitly Australia's obligations under the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention). Australia signed the Convention on 10 December 1985, and ratified it on 8 August 1989.

As a party to the United Nations Convention Against Torture, Australia must ensure that all acts of torture are offences under domestic criminal law. Australia meets this obligation, as acts falling within the Convention's definition of torture are offences under State and Territory criminal laws. These acts include the infliction of bodily harm, murder, manslaughter, assault and other offences against the person. Also, the 1988 Act implements Australia's obligations under the Convention to extend Australia's jurisdiction to persons suspected of having committed acts of torture outside Australia. The 1988 Act criminalises acts of torture committed outside Australia, only when committed by Australian citizens or other persons who are subsequently present in Australia. Acts of torture that are committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code Act.

In recent years, the UN Committee Against Torture has called on nations to enact a specific torture offence. In its Concluding Observations on Australia, issued in May 2008, the UN Committee Against Torture recommended that Australia enact a specific offence of torture at the federal level.

Mindful of the Committee's recommendation, the Government is enacting a new offence of torture in the Criminal Code, which will criminalise acts of torture committed both within and outside Australia. As the new offence will result in the redundancy of the 1988 Act, the 1988 Act will be repealed. Giving the offence extraterritorial application is intended to reflect a key aim of the Convention, which is to end impunity for torture globally. In enacting such an offence, the intention is to demonstrate the Government's condemnation of torture in all circumstances.

The offence is intended to operate concurrently with existing State and Territory offences. For this reason, Schedule 1 makes clear that the enactment of the new offence is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth or any law of a State or Territory.

Although the new offence of torture applies to public officials both within and outside Australia, it is not anticipated to affect legitimate law enforcement and intelligence-gathering activities routinely carried out by federal, State and Territory Government agencies in the course of their duties.

The purpose of Schedule 2 is to extend the application of the current prohibition on the death penalty to State laws (in addition to Commonwealth, Territory and Imperial criminal laws to which the Death Penalty Abolition Act already applies). This will ensure the death penalty cannot be reintroduced anywhere in Australia. It will thereby safeguard Australia's ongoing compliance with the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (to which Australia became a party on 2 October 1990).

Such a comprehensive rejection of capital punishment will also demonstrate Australia's commitment to the worldwide abolitionist movement, and complement Australia's international lobbying efforts against the death penalty.

Financial impact statement

The amendments in this Bill have no impact on Government revenue.