Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 1 - Amendments

Criminal Code Act 1995

32. Schedule 1 makes amendments to Division 115 of the Criminal Code Act 1995 (Criminal Code) to extend the retrospective application of offences of murder and manslaughter of an Australian citizen or resident overseas.

33. The current provisions were granted the Royal Assent on 14 November 2002, and were given retrospective commencement of 45 days to 1 October 2002.

Item 1 - Paragraph 115.1(1)(a) of the Criminal Code

34. This item extends the retrospective application of the murder offence. It provides that a person is guilty of the offence if the conduct engaged outside of Australia occurs 'before or after 1 October 2002 or the commencement of this Code'.

Item 2 - After paragraph 115.1(1)(d) of the Criminal Code

35. This item provides an additional element for offences where the relevant conduct was engaged in before 1 October 2002. This item clarifies that, in order for the offence to be made out, the conduct constituting the offence must also have constituted an offence against the law of the foreign country in which the conduct occurred.

36. This is not intended to affect the operation of the provisions relating to conduct which occurred on or after 1 October 2002.

37. Reference to 'conduct' in this item includes physical as well as fault elements.

Item 3 - Subsection 115.1(1) of the Criminal Code (penalty)

38. This item repeals the penalty applicable for offences against subsection 115.1(1).

Item 4 - At the end of subsection 115.1(1) of the Criminal Code

39. This item provides a note to clarify that section 115.1 commenced on 1 October 2002.

Item 5 - After subsection 115.1(1) of the Criminal Code

40. This item inserts two new subsections to provide for different penalties dependent on whether the conduct constituting an offence against subsection 115.1(1) was engaged in before 1 October 2002, or on or after 1 October 2002.

41. For conduct occurring before 1 October 2002, if the offence is punishable in the foreign jurisdiction in which the conduct occurred by a term of imprisonment (other than imprisonment for life) the maximum term of imprisonment applied by an Australian court may not exceed the term of imprisonment that applies in the foreign country.

42. If the conduct is punishable in the foreign jurisdiction by a non-custodial sentence with no Australian penalty equivalent, the maximum penalty (life imprisonment) will be applicable, subject to general sentencing principles.

43. Where the conduct occurred on or after 1 October 2002, the offence is punishable by a maximum term of imprisonment for life. This preserves the current approach adopted in subsection 115.1(1).

Item 6 - Subsection 115.1(2) of the Criminal Code

44. This item amends subsection 115.1(2) to apply absolute liability to the new elements of the murder offence set out in subsection 115.1(1)(e). Absolute liability already applies to the element set out in paragraph 115.1(1)(c) and the amendment maintains that approach.

45. 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.

Item 7 - At the end of section 115.1 of the Criminal Code

46. This item provides that where a person has been convicted or acquitted of an offence regarding conduct in a foreign country before 1 October 2002, that person cannot be convicted of an offence against this section in respect of that conduct. This gives effect to Australia's obligations under the 'double jeopardy' principle in Article 14(7) of the ICCPR.

47. This provision does not apply to conduct occurring on or after 1 October 2002.

Item 8 - Paragraph 115.2(1)(a) of the Criminal Code

48. This item extends the retrospective application of the manslaughter offence. It provides that a person is guilty of an offence if the conduct engaged outside of Australia occurs 'before or after 1 October 2002 or the commencement of this Code'.

Item 9 - After paragraph 115.2(1)(d) of the Criminal Code

49. This item provides an additional element for offences where the relevant conduct was engaged in before 1 October 2002. This item clarifies that in order for the offence to be made out, the conduct constituting the offence must also have constituted an offence against the law of the foreign country in which the conduct occurred.

50. This is not intended to affect the operation of the provisions relating to conduct which occurred on or after 1 October 2002.

51. Reference to 'conduct' in this item includes physical as well as fault elements.

Item 10 - Subsection 115.2(1) of the Criminal Code (penalty)

52. This item repeals the penalty applicable for offences against subsection 115.2(1).

Item 11 - At the end of subsection 115.2(1) of the Criminal Code

53. This item provides a note to clarify that section 115.2 commenced on 1 October 2002.

Item 12 - After subsection 115.2(1) of the Criminal Code

54. This item inserts two new subsections to provide for different penalties dependent on whether the conduct constituting an offence against subsection 115.2(1) was engaged in either before 1 October 2002, or on or after 1 October 2002.

55. For conduct occurring before 1 October 2002, if the offence is punishable in the foreign jurisdiction in which the conduct occurred by a term of imprisonment less than 25 years, the defendant will be liable to the lower penalty.

56. If the conduct is punishable in the foreign jurisdiction by a non-custodial sentence with no Australian penalty equivalent, the maximum penalty (term of imprisonment not more than 25 years) will be applicable, subject to general sentencing principles.

57. Where the conduct occurred on or after 1 October 2002, the offence is punishable by a maximum term of imprisonment for 25 years. This preserves the current approach adopted in subsection 115.2(1).

Item 13 - Subsection 115.2(2) of the Criminal Code

58. This item amends sub section 115.2(2) to apply absolute liability to the new element of the manslaughter offence set out in subsection 115.2(1)(e). Absolute liability already applies to elements set out in paragraphs 115.2(1)(b) and 115.2(1)(c) and the amendment maintains that approach.

59. This means that it will not be necessary for the prosecution to prove a fault element in relation to these physical elements, and that the defence of mistake of fact will not be available to the defence.

Item 14 - At the end of section 115.2 of the Criminal Code

60. This item provides that where a person has been convicted or acquitted of an offence regarding conduct in a foreign country before 1 October 2002, that person cannot be convicted of an offence against this section in respect of that conduct. This gives effect to Australia's obligations under the 'double jeopardy' principle in Article 14(7) of the ICCPR.

61. This provision does not apply to conduct occurring on or after 1 October 2002.