Senate debates

Thursday, 12 November 2015


Crimes Legislation Amendment (Harming Australians) Bill 2015; Second Reading

12:59 pm

Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

The Crimes Legislation Amendment (Harming Australians) Bill 2015 extends the retrospective application of part of division 115 of the Criminal Code—offences that were introduced, with Labor's support, in the aftermath of the Bali bombings, to ensure that those responsible were able, if necessary, to be prosecuted in Australian courts for the atrocity they had committed.

The new offences delivered 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 currently before the Senate will extend the retrospectivity of the most serious of those offences—murder and manslaughter. This bill 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 only be made cautiously. This bill follows an earlier private senator's bill of the same purpose, introduced by Senator Xenophon. That bill was referred to the Senate Legal and Constitutional Affairs Legislation 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 now been addressed in this new bill.

This bill now implements important safeguards to ensure prosecutions are fair and fundamental principles ensuring the integrity of our justice system are respected. It ensures that no-one can be tried in Australia where 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 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 is 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 had its genesis in one tragic case—the murder of Anthea Bradshaw-Hall, a school teacher from Adelaide, in Brunei in 1994. More than 20 years on, the perpetrator of that crime has not been brought to justice. I acknowledge the bravery of the Bradshaw family in pursuing justice for Anthea and their dedicated advocacy for a change to the law. We also acknowledge the tireless efforts of Senator Xenophon on this matter. Senator Xenophon has worked towards the passage of this bill for several years now. He has worked closely with the Bradshaw family, who are constituents of his in South Australia. I would like to thank Senator Xenophon for the constructive way in which he has worked with Labor to ensure that the hole in the present law could be filled without any unintended or inappropriate consequences.

Where Australians are killed overseas, and where the relevant authorities are unwilling or unable to bring those responsible to justice, Labor considers it proper that Australia takes steps to ensure that 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 the example of Anthea Bradshaw-Hall shows the need for a further extension of those measures. With the safeguards it now contains, this bill will ensure that in this and similar cases in future, justice can be done. I commend Senator Xenophon and the Bradshaw family not only for addressing their own immediate circumstances but also for closing a loophole that would apply in the future. I commend the bill to the Senate.

1:03 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

With great pleasure I rise to support this bill, the Crimes Legislation Amendment (Harming Australians) Bill 2015, which I co-sponsored with the Attorney-General. I would like to particularly thank Senator Collins for a very gracious contribution in relation to this. It was a very fair summary of the bill. I also want to acknowledge the cooperation of the opposition and, indeed, the discussions I have had with the shadow Attorney-General, the Hon. Mark Dreyfus QC, in respect of this—discussions had as recently as last night.

I think that Senator Collins has summed up the position very well. These are important matters in terms of extraterritoriality and retrospectivity, and the human rights issues have been dealt with comprehensively in this bill. They have been dealt with as a result of an opinion that I obtained from Claire O'Connor SC, an Adelaide based barrister, who is well known for her human rights work. No-one would question Ms O'Connor's human rights credentials and her concern about maintaining not only the rule of law but also a very strong human rights framework. She is well known for her work in respect of asylum seeker cases, for instance.

I also want to genuinely thank the Attorney-General for the work that he has done, both in his time in opposition and as Attorney. This has been a very long process; it has been a very thorough process. The Attorney-General has been terrific to deal with on this and, at the risk of embarrassing him, James Lambie, who is one of his senior advisors—

Honourable Senator:

An honourable senator interjecting

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

He is un-embarrassable—maybe. I do not think it has been dozens of phone calls we have had over the years; it is possibly hundreds of phone calls we have had over the years in relation to this bill—but he has been incredibly patient. The Attorney has done a magnificent job of working through the concerns. The easy thing for the Attorney to have done would have been to say, 'This is all too hard,' but he did not. I want to pay genuine tribute to the Attorney for the way that he has handled this bill. He has listened to the concerns and he has methodically worked through it to get to the stage where we are today. So I genuinely want to thank him.

I also should acknowledge the member for Sturt, the Hon. Christopher Pyne MP. The Bradshaw family are his constituents. He has done tremendous work in advocating for this bill. He has been a great advocate, in addition to the Attorney, in cabinet, and I genuinely thank Mr Pyne for the work he has done.

It is also important to acknowledge that this bill has been brought about by both the grief and the love of the Bradshaw family—Martin and Ros Bradshaw, the parents of Anthea, and Anthea's brothers Craig and Paul. None of them have ever given up hope that one day there will be a process for justice for their daughter's and sister's murder in Brunei in July 1994. That has been outlined previously, and I do not propose to go into further detail. But I do want to acknowledge the work of a journalist, Nigel Hunt, from the Adelaide Advertiser, whose relentless investigative, forensic work on this brought this matter to light. It has been an absolute privilege to work with all the parties involved to get to this stage.

There are real safeguards in the bill that the Attorney has introduced and that I have had the privilege of co-sponsoring. Concerns were taken into account, and I thank Senator Ian Macdonald, as chair of the Senate Legal and Constitutional Affairs Legislation Committee, for his incredible patience in dealing with this matter.

I do not think it is appropriate that I should go into too much detail about the circumstances of Anthea's death, but I think it is fair to say that this bill will remedy a gap in the law that will allow the South Australia Police and the Director of Public Prosecutions to proceed with this matter further should they consider there is evidence to do so. It is not just about the Bradshaws; it is about every other family where there has been a death of an Australian overseas and issues of extraterritoriality are relevant in the context of this bill.

I conclude by saying it has been a genuine privilege to work with my colleagues on this—to work with the Attorney for some time on this and with James Lambie from his office, the opposition and Christopher Pyne, the member for Sturt. This shows the parliament working at its best, in a way that is not partisan, in a way that goes beyond politics to achieve a good outcome for the community. I strongly support this bill and look forward to its speedy passage in both Houses.

1:08 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

Might I thank honourable senators for their contributions, and might I thank you in particular, Senator Xenophon, for those very gracious words. It is a shame, in a sense, that these proceedings are not being broadcast, because if the public had heard your eloquent speech they would understand that most of what we do in this chamber is done collaboratively and in a spirit of collegiality. All they see on the evening news is those occasions where there are controversial political issues in which strongly held points of view or strongly held different points of view are argued, sometimes in an immoderate tone, but most of what we do is done in a spirit of collegiality and, dare I say, friendship.

Thank you for the kind words you have been good enough to say about me, but thank you more particularly on behalf of my staff and in particular the indefatigable Mr James Lambie. I thought Mr Lambie might actually be working for you, Senator Xenophon, rather than for me. He seems to spend more time collaborating and meeting with you than with me on a wide range of legislative measures, and this has been one. I can assure you, Senator Xenophon, that, having known Mr Lambie for some 25 years now, he is unembarrassable.

Those light-hearted remarks aside, we should pause to reflect for a moment on the fact that, although this is a good legislative outcome which is the product of a very good process, it has its genesis in a tragedy. It has its genesis in the killing of Anthea Bradshaw-Hall in Brunei in 1994. This bill will forever after be known as the Bradshaw bill. That terrible event did disclose a lacuna in our law which you, Senator Xenophon, and the member for Sturt, my friend Mr Pyne, have worked together on with me and my office to address and to solve, and it is now solved. I could not put it better, Senator Xenophon, than to use the words you used when you said that this is the product of both love and grief. It was a humbling experience to meet the members of the Bradshaw family who have turned their grief, through an act of love, into a benefit for all Australians so that no family that suffers at any time in the future the horror that they suffered will find themselves remediless. Of all the people who deserve thanks and praise it is the Bradshaw family, of course, that most deserve thanks and praise and acknowledgement.

As honourable senators are aware, the Bradshaw bill, which is technically known as the Crimes Legislation Amendment (Harming Australians) Bill 2015, makes amendments to the Commonwealth Criminal Code to extend the operation of the harming Australians offence of murder and manslaughter of an Australian citizen or resident of Australia overseas to cover crimes committed prior to 1 October 2002—that is, the gap or the lacuna that I referred to: the period prior to 1 October 2002 was not covered. The bill ensures that the crimes of murder and manslaughter of Australians overseas can be prosecuted wherever and whenever they occur. Although technically that means that this is a criminal law which has a retrospective operation, it only has retrospective operation in a technical sense because there is no jurisdiction in the world which does not recognise within its domestic criminal law a crime of murder or manslaughter, however so described. The retrospective character of the bill is formal only; it has no practical significance.

The maximum penalty under the new law will be life imprisonment for murder and 25 years for manslaughter. The bill demonstrates the government's commitment to ensuring that Australia has every legal tool it needs to prosecute those who commit crimes against Australians wherever occurring and whenever occurring. Although I said a moment ago that it demonstrates the government's commitment, I should perhaps better have said that it demonstrates the parliament's commitment.

Thank you, Senator Xenophon; thank you, Mr Pyne; and thank you, most particularly, the Bradshaw family for your courage, perseverance, decency and generosity through this difficult time.

Question agreed to.

Bill read a second time.