Criminal Code Amendment (Harming Australians) Bill: Calls to Enact

Tuesday 27 January 2015 @ 9.34 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In 2013, independent South Australian Senator Nick Xenophon sought changes to Federal Law intended to enable a man suspected of killing Adelaide woman Anthea Bradshaw-Hall to be prosecuted in Australia.

The proposed law drafted and introduced by Mr Xenophon, namely the Criminal Code Amendment (Harming Australians) Bill 2013 is an attempt to amend the Criminal Code Act 1995 (Cth) to remove the time limit statute which would enable an action to be launched in connection with Ms Bradshaw's murder in 1994 in Brunei.

At the time of introducing the Bill, Senator Xenophon indicated that his hope was that the Bill would be quickly considered by the new Parliament after the last election. However, since then, the Bill has not progressed and now it is reported that the South Australian Commissioner for Victims Rights has appealed to Federal members of parliament to pass the legislation that will allow the suspect in the murder of Adelaide woman Anthea Bradshaw-Hall in Brunei to go to trial in Adelaide. As News.com reports:

"In his heartfelt appeal, Michael O’Connell urges the MPs, including Prime Minister Tony Abbott, to favourably consider an amendment to the Criminal Code Act introduced by Independent Senator Nick Xenophon."

Outline of what is proposed by the Bill

The Bill seeks to extend the operation of existing provisions under the Criminal Code Act 1995 (Cth) that make it an offence to harm Australians overseas. The original provisions were introduced in October 2002, following terrorist bombings in two Bali nightclubs.

The aim of the original provisions was to allow for the prosecution of individuals who harmed Australians outside Australia by either murder or manslaughter, or through intentional or reckless behaviour, to be brought to justice.

The original provisions commenced on 1 October 2002, and apply only to offences committed after that date. The aim of the amending Bill proposed by Senator Xenophon is to allow prosecutions under these provisions to apply to any case that occurred before this date and that meets the other criteria in the provisions of the Criminal Code Act 1995 (Cth). The stated aim being to ensure that all Australians harmed overseas have access to the same level of justice.

Current Status

The amendment, to make the relevant parts of the Commonwealth Criminal Code legislation retrospective are expected to be voted on next month after the Federal Cabinet considers a new submission which is reported to include a legal opinion by respected human rights lawyer Claire O’Connor, supporting the changes subject to several minor provisions. Mr O’Connor is reported as stating that the amendment will “ensure fundamental fairness’’ for any Australian citizen murdered while overseas. Mr O'Connor is further quoted as saying:

“Access to justice for victims of crime is an essential element of a fair, humane and equitable criminal justice system based on the rule of law — yet Anthea and her family, as victims of crime, have been denied such in Brunei and in Australia, . . .’’

The Bradshaw Case

Anthea Bradshaw-Hall, a 26 year old primary school teacher, was murdered while visiting Brunei on 21 July 1994. She was about to move to the sovereign state on the island of Borneo with her husband who had secured a job there. Her husband told police he found his wife dead on the floor of their apartment. She had been strangled and then stabbed four times.

The Brunei police, it is reported, would not prosecute the only suspect in the case because they did not believe they had enough evidence to sustain a case. However, in what is reported as an unusual action,the South Australian Police’s Major Crime Investigation Section launched an inquiry into Ms Bradshaw-Hall’s death as a result of approaches by her family. As a result, South Australian prosecutors now believe there is enough evidence to prosecute the suspected person in Australia subject to the Commonwealth Criminal Code being amended to make the relevant provisions retrospective in effect.

An Important Year for the Law to Change

Mr O’Connell is reported as stating that the proposed amendments to the Commonwealth Criminal Code will validate the well established common law, that:

“Murder has been a crime for centuries and, despite variations in law, it is a crime of universal consensus, . . ."

He further is reported as pointing out that:

“It will be a sad year for Anthea, for her surviving family and for all Australians who become victims of homicide overseas if in 2015 (the year that marks the 30th anniversary of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power) parliamentarians look on the proposed amendment with complacency about victims and disregard for their rights, particularly their right to access to justice."

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