Harming Australians and Retrospectivity

In the last days of the Parliament in 2013, Senator Nick Xenophon introduced a Private Members Bill to the Senate to make the “Harming Australians” offences in the Commonwealth Criminal Code retrospective.

The Harming Australians Division of the Criminal Code Act 1995 (Cth) was introduced in 2002 and created four offences: murder, manslaughter, and the intentional or reckless serious harm. These offences are extraterritorial which means they can be used to prosecute an accused for acts committed against an Australian citizen or resident while they are overseas.

The commencement date of these offences was made retrospective by 45 days and commenced on 1 October 2002 with the aim to capture the perpetrators of the Bali Bombings.

The 2013 Bill aims to give the Harming Australians offences unlimited retrospective effect and was referred to the Senate Legal and Constitutional Affairs Legislation Committee for consideration. Rule of Law Institute provided a submission to the committee which made the following comments:

Retrospectivity offends the rule of law, but on balance enough protections exist to ensure the rights of the accused are protected.
That there are situations where the retrospectivity proposed in the Bill would not merely extend the jurisdiction of the court but create a substantive criminal offence.
The Attorney-General’s role in the authorising prosecutions is appropriate for this offence, but a case rejected only on “public policy” grounds would be in contempt of the purpose of the law.
The independence of prosecutors and courts is key in ensuring a fair trial for an accused.