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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (TORTURE PROHIBITION AND DEATH PENALTY
ABOLITION) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
CRIMES LEGISLATION AMENDMENT (TORTURE PROHIBITION AND DEATH PENALTY
ABOLITION) BILL 2009
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.
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Crimes Legislation Amendment (Torture Prohibition and Death Penalty
Abolition) Act 2009.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant Act.
Schedule 1-Amendments and repeal relating to offence of torture
Part 1 - Main Amendment
Item 1 - Amendments to Criminal Code Act 1995
This Item adds a new Division 274 at the end of Chapter 8 of the
Commonwealth Criminal Code. The Division is intended to create an offence
of torture in the Commonwealth Criminal Code, which will replace the
existing offence of torture in the Crimes (Torture) Act 1988 (Cth) (the
1988 Act). As the new offence will result in the redundancy of the 1988
Act, the 1988 Act will be repealed.
Section 274.1 - Definitions
Section 274.1(1) will make it clear that references in Division 274 to the
Convention refer to the UN Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the Convention), which was
adopted by the UN General Assembly on 10 December 1984, and which entered
into force on 26 June 1987. Given the ready availability of the text of the
Convention on the Internet, it has not been annexed to the Bill as it was
to the 1988 Act.
Article 1(1) of the Convention provides that:
For the purposes of this Convention, torture means any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he
or a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.
Article 1(2) provides that '[t]his article is without prejudice to any
international instrument or national legislation which does or may contain
provisions of wider application.'
Section 274.1(2) will provide that, where there is a reference in Division
274 to phrases in the Convention, those phrases have the meaning that they
have in the Convention as this new Division is intended as a direct
implementation of the international prohibition in the Convention.
Section 274.2 - Torture
Section 274.2 will set out a restatement of the crime of torture as
prohibited by the Convention. Subsections 274.2(1) and 274.2(2) will set
out the offence provisions.
Subsection 274.2(1) will make it an offence to engage in conduct which
inflicts severe physical or mental suffering, for a certain prohibited
purpose or purposes by, or with some involvement on the part of, a public
official, as defined in the Convention.
The phrase 'severe physical or mental pain or suffering' reflects article
1(1) of the Convention, which refers to 'severe pain or suffering, whether
physical or mental'. As indicated in section 274.1(2), the phrase 'severe
physical or mental pain or suffering' is intended to have the same meaning
as it has in the Convention. The requirement that the pain or suffering be
'severe' indicates a high threshold.
Paragraph 274.2(1)(a) will use the phrase 'engage in conduct' with the
definition in subsection 4.1(2) of the Criminal Code in mind. Subsection
4.1(2) of the Criminal Code provides that 'conduct' means 'an act, or
omission to perform an act or state of affairs', and that 'engage in
conduct' means 'do an act' or 'omit to perform an act'. Although torture
is defined in the Convention as 'any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted...,' relevant
conduct could include deliberate omissions which could inflict severe pain
or suffering such as denial of nutrition, clothing or medical care.
Paragraph 274.2(1)(b) will list the purposes for which the relevant conduct
must be engaged in if it is to amount to torture. In summary, these are
the purposes of
obtaining information or a confession from the person or from a third
person; punishing the person for an act which that person or a third person
has committed; intimidating or coercing the person or a third person; for
any reason based on discrimination of any kind; or for a purpose related to
one of the aforementioned purposes. The inclusion in sub-paragraph
274.2(1)(b)(iv) of the phrase 'for a purpose related to a purpose mentioned
in subparagraph (i), (ii), (iii)' is intended to give effect to the phrase
'for such purposes as' in the definition of torture in article 1 of the
Convention, while also balancing the requirement for specificity in
criminal law legislation.
Paragraph 274.2(1)(c) will provide that an integral component of the
offence is the involvement of a public official or 'person acting in an
official capacity'. The requirements of paragraph 274.2(1)(c) will be
satisfied whether the person in question actually tortures the victim, or
instigates the act of torture, or consents to or acquiesces in it. The
reference to a person 'acting in an official capacity' is intended to
encompass certain non-State actors who are exercising authority comparable
to government authority. For example, they may belong to a political
organisation exercising de facto authority over a particular region of a
country. Although the Dictionary to the Criminal Code contains a
definition of public official, it is intended that this paragraph be
interpreted according to the relevant international law, in accordance with
subsection 274.1(2). It is envisaged that that the types of officials
listed in the (non-exhaustive) Criminal Code definition would also be
considered public officials under international law, but the international
definition would also encompass, for example, foreign public officials and
some persons exercising pseudo-governmental authority.
Although the new offence of torture applies to public officials both within
and outside Australia, it does not affect legitimate law enforcement and
intelligence-gathering activities routinely carried out by federal, State
and Territory Government agencies in the course of their duties.
To establish this offence, the prosecution would, in accordance with
section 5.6 of the Criminal Code, need to prove beyond reasonable doubt
that:
. the person intentionally inflicted severe pain or suffering, whether
physical or mental, on another (the victim)
. the person did so intending to obtain information or a confession
from the victim or from a third person, to punish the victim for an
act which he/she or a third person committed, or to intimidate or
coerce the victim or a third person, and
. did so in the capacity of a public official or acting in an official
capacity or at the instigation, consent or acquiescence of a public
official or person acting in an official capacity.
In the case of 274.2(1)(b) and 274.2(2)(b), the relevant fault element is
ulterior intention. Ulterior intention is a fault element that exists
independently of any physical element. Ulterior intention focuses on a
defendant's intention to bring about a particular result and it is not
necessary to prove that the result actually eventuated. For example, in
paragraph 274.2(1)(b)(i) the prosecution must prove that the defendant
intended to engage in conduct for the purpose of obtaining information or a
confession from a victim or from a third person. The prosecution will not
have to prove that the defendant actually obtained information or a
confession, just that they intended to for that purpose.
Absolute liability will apply to the element of the offence in paragraph
274.2(1)(c). Paragraph 274.2(1)(c) requires that the perpetrator must be a
public official, or a person acting in an official capacity, or acting at
the instigation, or with the consent or acquiescence, of a public official
or other person acting in an official capacity.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and that the defence of mistake of
fact is not available. Accordingly, if it can be proved that the defendant
was in fact a public official, or was acting at the instigation, or with
the consent or acquiescence, of a public official, or other person acting
in an official capacity, the prosecution will not be required to prove that
the defendant knew he/she was a public official, or that the defendant knew
that he/she was acting at the instigation, or with the consent or
acquiescence, of a public official or other person acting in an official
capacity.
Absolute liability is appropriate and required for this element of the
offence because involvement by a public official is a necessary
circumstance under article 1 of the Convention. Furthermore, this element
does not go to the substance or essence of the culpability of the offence.
Strict liability is insufficient in this instance, because it is
inappropriate for a mistake of fact as to the involvement of a public
official to be available as a defence to torture. This is consistent with
Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Under subsection 274.2(2), it will be an offence for a public official, or
person acting in an official capacity, or a person acting at the
instigation, or with the consent or acquiescence, of a public official or
other person acting in an official capacity, to engage in conduct which
inflicts severe physical or mental pain or suffering on a person, where
that conduct is engaged in for any reason based on discrimination of any
kind.
The phrase 'for any reason based on discrimination of any kind' mirrors the
phrase in article 1(1) of the Convention. As indicated in section 274.1(2),
the phrase in the Bill is intended to have the same meaning as it has in
the Convention.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 274.2(2)(a) and (b).
Subsection 274.2(2) differs from the offence created by 274.2(1) only in
the ulterior intent (purpose of the torture set out in paragraph
274.2(2)(b)) which must be proven.
In practice, this means the prosecution will need to prove beyond
reasonable doubt that:
. a person intentionally inflicted severe pain or suffering, whether
physical or mental, on another (the victim), and
. intended to engage in that conduct for a discriminatory reason, and
. did so in the capacity of a public official or acting in an official
capacity or at the instigation, consent or acquiescence of a public
official or person acting in an official capacity.
Subsection 274.2(3) will provide that absolute liability applies to
paragraphs 274.2(1)(c) and 274.2(2)(c). The application of absolute
liability to these elements of the offence is described above.
Australia is obliged under article 4(1) of the Convention to criminalise
attempts to commit torture, as well as complicity or participation in
torture. Ancillary offences, which are defined in Part 2.4, Division 11 of
the Criminal Code, apply automatically to Division 274. The five kinds of
ancillary offences are attempt; complicity and common purpose (aiding,
abetting, counselling or procuring); innocent agency; incitement, and
conspiracy. The fault elements for these ancillary offences are set out in
sections 11.1 to 11.5 of the Criminal Code. For example, by operation of
sections 11.6 and 11.1 of the Criminal Code, an attempt to commit torture
will be punishable as though the torture had been committed, and incitement
to torture or conspiracy to torture will be punishable in accordance with
sections 11.4 and 11.5 of the Criminal Code. A person who aids, abets,
counsels or procures torture-that is, someone who is complicit in torture-
will be taken to have committed torture and be punishable accordingly, by
operation of section 11.2 of the Criminal Code.
Article 4(2) of the Convention requires that '[e]ach State Party shall make
these offences punishable by appropriate penalties which take into account
their grave nature.' Accordingly, the maximum penalty prescribed for an
offence against this Division is imprisonment for 20 years. This penalty
reflects the gravity of the offence of torture. There are comparable
penalties in legislation both overseas (in the United Kingdom, Canada and
New Zealand) and in Australia (torture offences in Queensland, the
Australian Capital Territory and Norfolk Island, as well as offences of
similar gravity elsewhere in the Commonwealth Criminal Code).
Subsection 274.2(4) is in similar terms to the 1988 Act (paragraph
3(1)(b)), namely that severe pain or suffering that arises only from,
inherent in or incidental to lawful sanctions that are not inconsistent
with the articles of the International Covenant on Civil and Political
Rights does not constitute torture.
Subsection 274.2(5) will give the offence Category D extended geographical
jurisdiction, as provided for in section 15.4 of the Criminal Code. That
is, the offence applies:
o whether or not the conduct constituting the alleged offence
occurs in Australia; and
o whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
This is intended to ensure the broadest possible extraterritorial
jurisdiction under the Criminal Code for the present offence, in
recognition of the serious nature of the crime of torture and its
widespread condemnation internationally.
Section 274.3 - Prosecutions
Subsection 274.3(1) will require the Attorney-General's written consent to
commence proceedings if the conduct constituting the alleged offence of
torture occurs wholly in a foreign country.
Subsection 274.3(2) will require that a person may be arrested for,
charged with, or remanded in custody or released on bail in connection with
an offence under Division 274 before consent to prosecute has been granted.
Subsection 274.3(2) will provide that subsection 274.3(2) does not prevent
an accused person from being discharged, if the proceedings are not
continued within a reasonable time.
The Attorney-General's decision in relation to consent is judicially
reviewable under the Administrative Decisions (Judicial Review) Act 1977
(Cth).
Section 274.4 - No defence of exceptional circumstances or superior orders
In accordance with articles 2(2) and (3) of the Convention, neither
exceptional circumstances nor orders from a superior officer will be
permitted as a defence under Division 274. This provision mirrors section
11 of the 1988 Act. If, however, the accused person is convicted of an
offence of torture, the fact that the conduct constituting the offence was
done in exceptional circumstances or under orders from a superior
authority, may be taken into account in determining the proper sentence.
Section 274.5 - Jurisdiction of State/Territory courts preserved
This provision ensures that proceedings under Division 274 may be
instituted in State and Territory courts. Its equivalent in the 1988 Act
is section 12.
Section 274.6 - Concurrent operation intended
This section will provide that Division 274 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.
Acts which would constitute torture are prohibited under the laws of each
State and Territory, although only a small number of jurisdictions
currently have a specific offence of torture. This provision will ensure
that State and Territory laws can still apply to relevant conduct, if
appropriate.
Section 274.7 - Double jeopardy
This section is intended to prevent re-prosecution for torture based on the
prohibitions on double jeopardy in the common law and international human
rights law.
Part 2 - Other Amendments
Items 2 and 3 - Amendments to section 71.13 of the Criminal Code
These items will omit from Division 71 of the Criminal Code (Offences
against UN and associated personnel) the reference to torture, as it does
not conform to the Convention definition and has the potential to cause
confusion with the definition of torture in subsections 274.1(1) and (2).
It does not alter the substance of the aggravated offence in section
71.13(1)(a).
Part 3 - Repeal
Item 4 - The whole of the Act
This Part will repeal the 1988 Act in its entirety.
Schedule 2-Amendments relating to the abolition of the death
penalty
This schedule will amend the Death Penalty Abolition Act 1973 (the 1973
Act).
Item 1 - Title
Item one will amend the long title of the 1973 Act to include a reference
to the laws of the States and Territories, in addition to the existing
reference to the laws of the Commonwealth and 'other laws in relation to
which the powers of the Parliament extend' (a reference primarily to
Imperial laws which may still apply in Australia).
The long title will now be as follows:
An Act to abolish Capital Punishment under the Laws of the Commonwealth, of
the States and of the Territories, and under certain other Laws in relation
to which the Powers of the Parliament extend.
Item 2 - Application
This item will insert a new subsection 3(3) into the 1973 Act to specify
that section 6 of the Act (to be inserted by item 5) is to apply to State
laws.
It will also amend subsection 3(4) to remove an obsolete reference to
pending proceedings.
Item 3 - Liability
This item will amend section 4 of the 1973 Act to specify that no one is
liable to the punishment of death for any offence in relation to, and in
relation to offences under, the laws of the Commonwealth and of the
Territories, and, to the extent to which the powers of the Parliament
permit, in relation to, and in relation to offences under, Imperial Acts.
Section 4 (together with section 5) will have the effect of prohibiting a
court from sentencing an offender to death. In effect, it would override
any provision of Commonwealth, Territory or Imperial law which purported to
authorise the death penalty.
Item 4 - Substitution of life
This item will maintain the previous application of section 5, just as item
3 does for section 4. Section 5 will provide that if, under a law of the
Commonwealth, a Territory or an Imperial law, 'a person is liable to the
punishment of death, the reference to the punishment of death shall be
read, construed and applied as if the penalty of imprisonment for life were
substituted for that punishment.'
Item 5 - Imposition
This item will insert a new section 6 into the 1973 Act which applies to
all relevant Commonwealth, State, Territory and Imperial laws. In contrast
to section 4, which is intended to deal with any existing provisions that
may provide for the death penalty, section 6 is intended to prevent the
death penalty from being imposed in the future. That is, section 6 is
intended to prevent the death penalty from being reintroduced into the law
in any Australian jurisdiction, to ensure ongoing compliance with the
Second Optional Protocol to the International Covenant on Civil and
Political Rights.