Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

Anthea Bradshaw-Hall is the daughter Martin and Ros and the sister of Craig and Paul. I acknowledge the presence of Martin and Ros, Craig and Paul, and other members of their family in the gallery today, but I sincerely regret that they have to be here at all. They are here because over 21 years ago their daughter, their sister, was murdered in Brunei. She was 26 years old and her whole life was ahead of her. They are here because no-one has ever been tried for Anthea's murder. Law enforcement agencies are confident that there is enough evidence to charge the only suspect and prosecute that person in Australia, but until this bill becomes law there could be no justice for Anthea. They are also here so that never again will an Australian family, having suffered the tragedy of a murder of their child overseas, have to wait 21 years to see the wheels of justice start to turn. It is a testament to the love of Anthea's family and their relentless pursuit of justice today that I move the second reading of the Crimes Legislation Amendment (Harming Australians) Bill 2015.

The Crimes Legislation Amendment (Harming Australians) Bill will amend Division 115 of the Criminal Code Act 1995 to provide for the retrospective application of offences of murder and manslaughter of an Australian citizen or resident overseas. This bill will enable prosecution of these offences in Australia under Australian law in certain circumstances. The bill will also include safeguards for the retrospective application of these offences. Division 115 of the Criminal Code currently provides for four offences resulting in harm to Australians, including murder, manslaughter, recklessly causing serious harm or intentionally causing serious harm to Australians. These offences have extraterritorial application and were enacted following the 2002 Bali bombings. The existing offences were given retrospective commencement of 45 days to apply from 1 October 2002.

These amendments will extend the operation of the offences of murder and manslaughter of an Australian citizen or resident of Australia overseas to crimes committed prior to 1 October 2002. The maximum penalty under the new laws will be life imprisonment for murder and 25 years for manslaughter. While there are a range of tools at the disposal of Australia's law enforcement agencies, these amendments will clarify that the crimes of murder and manslaughter of Australians can be prosecuted wherever and whenever they occur.

Due to their retrospective operation, the new offences include safeguards to ensure their compatibility with Australia's obligations under international law. Conduct constituting the offence must be an offence at the time of commission under the law of the country in which the conduct occurred. This is known as the 'dual criminality' requirement. A person convicted of the new offences will also have the benefit of the lowest applicable penalty for the offence as between the laws of Australia and the country in which the conduct occurred. This is known as the 'benefit of the lowest penalty' requirement. These two requirements ensure that Australia's criminal laws operate consistently with Australia's obligations under international law on the use of retrospective criminal offences.

As a further safeguard, and consistent with all other offences in division 115 of the Criminal Code, the Attorney-General's written consent is required to commence proceedings under these provisions. This is an important safeguard which enables the Attorney-General to consider the circumstances of a case prior to commencing prosecutions.

The genesis of this bill was a tragedy, but the bill will close a loophole that has allowed great injustice. It will help end the injustice suffered by the Bradshaw family for over 21 years and it will ensure that those who seek to harm Australians in the future know that they will be held to account in a court of law.

This bill was co-sponsored in the other place by the Attorney-General and Senator Nick Xenophon. Senator Xenophon introduced his own version of this bill in 2013, and I have been pleased to work with him and the Attorney to ensure the passage of this bill through both houses of parliament.

It was President Kennedy who said that things do not happen; things are made to happen. This bill will become law because the Bradshaw family, Senator Xenophon and I made it happen. The Bradshaws carry a burden that no family should have to, but I am very pleased that today, in the best traditions of this parliament, justice is closer for Anthea.

I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

I rise to speak in support of the Crimes Legislation Amendment (Harming Australians) Bill 2015. The bill extends the retrospective application of part of division 115 of the Criminal Code, offences which were introduced with Labor support in the aftermath of the Bali bombings to ensure that, if necessary, those responsible could be prosecuted in Australian courts for the atrocities they committed.

The new offences introduced in 2002—the murder, manslaughter and harming of Australians overseas—were given a very brief period of retrospective operation to ensure that they applied to the perpetrators of the Bali bombings. This bill, which passed the Senate last sitting week, will extend the retrospectivity of the most serious of those offences—murder and manslaughter. This legislation is therefore unusual in two respects: it operates both retrospectively and extraterritorially. This is uncommon in our legal system, and legislation of this kind ought be made only cautiously.

This bill follows an earlier private senator's bill with the same purpose, which was introduced by Senator Xenophon. That bill was referred to the Senate Legal and Constitutional Affairs Committee, where difficulties with its unusual operation were highlighted in submissions by legal academics, members of the Rule of Law Institute, the Attorney-General's Department and the Department of Foreign Affairs and Trade. Labor is satisfied that those concerns have been addressed in this new bill.

This bill now implements important safeguards to ensure that prosecutions are fair and that fundamental principles ensuring the integrity of our justice system are respected. It ensures that no-one can be tried in Australia for an offence of which they have already been convicted or acquitted in a foreign court. It ensures that no-one can be convicted for conduct which was not already criminal where and when it occurred. Importantly, it ensures that no-one can receive a penalty in Australia that is higher than that which applied in the relevant country at the time.

With these safeguards, no defendant could reasonably claim that the retrospective operation of these offences are unfair. For the families of Australians killed overseas, however, the measures in this bill will make all the difference.

Though the bill is of general application, it has its genesis in one tragic case. I do not want to comment on the details of that case but I do want to acknowledge the many years of advocacy by the family of Anthea Bradshaw-Hall which have culminated in this bill.

Where Australians are killed overseas and where the relevant authorities are unwilling or unable to bring those responsible to justice, Labor consider it proper that Australia takes steps to ensure that such criminal conduct does not go unpunished. In 2002, we were satisfied that the nature of the crimes committed against Australians in Bali justified the unusual step of retrospective and extraterritorial legislation. Today, we are satisfied that there is a need for a further extension of those measures to deal with a gap in Australia's criminal jurisdiction.

I commend the bill to the House.

Question agreed to.

Bill read a second time.