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6.21.1. Introduction

  1. Section 27 states:

    27 Retrospective criminal laws

    (1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

    (2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

    (3) If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty.

    (4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.

  2. Section 27(1)-(3) is modelled on art 15(1) of the ICCPR, and s 27(4) is modelled on art 15(2) of the ICCPR (see Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 19). A right against retrospective criminal laws and retrospective increases in penalty is also protected under art 7 of the European Convention on Human Rights.
  3. The scope of s 27 has not yet been thoroughly examined by Victorian courts or VCAT. As such, some of the following analysis is based on jurisprudence developed internationally. When considering the application of these materials to s 27, international, foreign and local jurisprudence should be used with ‘discrimination and care’, to ensure it is relevant to Victorian law (Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [18]–[19] (French CJ), [155]–[161] (Gummow J); WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 footnote [103] (Warren CJ); Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [182]–[183] (Warren CJ), [631] (Santamaria JA)).

Last updated: 10 May 2016

See Also

6.21. Retrospective criminal laws (s 27)

6.21.2. Scope of the right

6.21.3. Reasonable and justified limits under s 7(2)