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6.21.2. Scope of the right

Retrospective criminal laws (s 27(1))

  1. Section 27(1) states:

    (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. Section 27(1) reflects the principle, long recognised in criminal law, that there can be no crime and no punishment, other than as established by the law.
  3. For example, conviction for membership of political parties that had been subsequently banned, or conviction of immigration offences on the retroactive application of immigration statutes where no such offences had existed at the time of the offence, were found to be clear breaches of art 15(1), on which s 27(1) is based (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [15.04], citing UN Human Rights Committee, Merits, Communication No 28/1978 (Weinberger Weisz v Uruguay), 11th sess, UN Doc CCPR/C/11/D/28/1978, (29 October 1980) and UN Human Rights Committee, Views: Communication No 1870/2009 (Sobhraj v Nepal), 99th sess, UN Doc CCPR/C/99/D/1870/2009,), (27 July 2010),
  4. Punishment under extremely vague laws that do not clearly proscribe the relevant conduct would not satisfy art 15(1) of the ICCPR (UN Human Rights Committee, Concluding observations on Belgium (2004) UN doc CCPR/CO/81/BEL (12 August 2004) [24]). It may be that s 27(1), which is modelled on art 15(1) of the ICCPR, also prohibits conviction under very vague laws, although this has not been considered by Victorian courts.
  5. Section 27(1) protects people only from being found guilty of a criminal offence, which might result in the imposition of a criminal penalty. For example, in Lawson, the plaintiff’s Charter argument was rejected because the plaintiff had not been charged with any criminal offence. In addition, the court found that there was no relevant retrospective operation when a change in a law affects the legality of a continuing state of affairs (Lawson v Shire of Yarriambiack [2010] VCC 1066 [55]-[57]).
  6. Under the ICCPR, the right not to be convicted under retrospective criminal laws does not extend to changes in procedural law (for example, shifts in trial practice or changes to the rules of evidence). For example, in Nicholas, a person was convicted after being entrapped in a controlled operation where narcotics were exchanged between himself and an undercover police officer. Before his trial, the High Court of Australia ruled that evidence obtained through such illegal operations was inadmissible (Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66). By a later Act the Parliament reversed Ridgeway and the applicant in Nicholas was convicted of drug-trafficking. The UN Human Rights Committee rejected his claim because the laws governing the admissibility of the evidence had no bearing on the criminality of the applicant’s drug-trafficking activity, the relevant offence provisions had not been materially changed between his offending and conviction, so s 15(1) of the ICCPR was not engaged (UN Human Rights Committee, Views: Communication No 1080/2002 (Nicholas v Australia), 80th sess, UN Doc CCPR/C/80/D/1080/2002(19 March 2004), [7.4]).
  7. It is likely that s 27(1) of the Charter similarly does not extend to changes in procedural law. This would reflect the general principle of statutory interpretation that there is no presumption against retrospectivity for statutes that are merely procedural:

    A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying … that 'no one has a vested right in any form of procedure' (Rodway v The Queen (1990) 169 CLR 515, 521).

    Changes to penalty (ss 27(2)-(3))

  8. Sections 27(2)-(3) state:

    (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.

  9. Under s 27(2)-(3) a person convicted of a criminal offence gets the benefit of the more lenient penalty out of the penalty applying at the time the offence was committed and the penalty applying at the time of sentence.
  10. The principles in ss 27(2)-(3) of the Charter are reflected in s 114 of the Sentencing Act 1991 (see Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120 [49]; AMP v The Queen [2010] VSCA 48 [28]).
  11. Section 114 of Sentencing Act 1991 states:

    Effect of alterations in penalties

    (1) If an Act (including this Act) or subordinate instrument increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

    (2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.

  12. Subsection (1) also reflects the common law presumption against the retrospective operation of legislation, but makes an exception in sub-s (2) where retrospectivity would benefit the person who committed an offence before the penalty was reduced, if he or she were still to be sentenced (AMP v The Queen [2010] VSCA 48 [28]; Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120 [49]).
  13. A penalty for the purposes of s 27(2)-(3) means a ‘criminal punishment’ or ‘sentence’. In WBM, the plaintiff had argued that s 27(2) prohibited his registration and supervision under the Sex Offenders Registration Act 2004. The court rejected the characterisation of the registration as a penalty for the purposes of s 27 of the Charter, finding that:

    the question of whether a particular statutory scheme, such as that established by the [Sex Offenders Registration Act], constitutes the imposition of penalty is to be decided as a matter of substance, and not form. … the question is not to be determined by whether the principal Act expressly characterises the various requirements … as a ‘punishment’ (WBM v Chief Commissioner of Police (2010) 27 VR 249; [2010] VSC 219 [60], [62]).

  14. Rather, the question of whether an Act imposes a penalty is to be determined by the circumstances. The Court in WBM looked at the purposes of the Act and the nature of the obligations imposed on an offender. The primary purposes of the Act were to prevent re-offending and to facilitate investigation and prosecution of future offences. Neither of these purposes were found to be penal. In addition, the obligations imposed on an offender, such as prohibitions on child related employment, were protective in nature rather than penal (WBM v Chief Commissioner of Police (2010) 27 VR 249; [2010] VSC 219 [65]-[67]; see also UN Human Rights Committee Admissibility: Communication No 91/1981 (ARS v Canada), UN Doc CCPR/C/14/D/91/1981, (28 October 1981), [5.3]).
  15. However, under the ICCPR, the application of laws that provided for preventative detention of sex offenders after their sentences were complete were found to breach art 15(1), on which s 27(2) is modelled (UN Human Rights Committee, Views: Communication No 1629/2007 (Fardon v Australia), 98th sess, UN Doc CCPR/C/98/D/1629/2007, (18 March 2010), UN Human Rights Committee, Views: Communication No. 1635/2007 (Tillman v Australia), UN Doc CCPR/C/98/D/1635/2007, (18 March 2010)).
  16. Under the ICCPR, the UN Human Rights Committee has not found that changes to parole regimes breach art 15. This is because parole regimes are discretionary and depend on the behaviour of the convicted person, so even if a new regime appears more lenient, for example, there is no certainty that a person would benefit from that leniency (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [15.15]).
  17. Factors that may indicate whether a particular measure is a ‘penalty’ for the purposes of s 27(2)-(3) include, for example:
  18. In Victoria, the Sentencing Act 1991 provides for imprisonment or other detention orders, community correction orders, and fines, for example, which may be considered penalties under the Charter.
  19. The ‘penalty that applied to the offence’ in s 27(2) is the maximum penalty prescribed for the offence at the time of the offending conduct, so that a penalty imposed within that prescribed limit does not offend s 27(2). The right under s 27(2) does not require a comparison between the actual penalty imposed and the penalty that would probably have been imposed by the sentencing judge at the time the offence was committed. In Leys, the maximum penalty for the relevant offence was 10 years at the time of offending and at the time of sentencing, so s 27(2) was not engaged (Director of Public Prosecutions (DPP) v Leys (2012) 44 VR 1; [2012] VSCA 304 [130]-[134]; MacDonald v County Court of Victoria [2013] VSC 109 [70]).
  20. In other words, s 27(2) will only be limited if a sentence is imposed, which is a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed. For example, in MacDonald, the County Court imposed a fine of $165 for a speeding offence after the infringement notice originally required payment of $138. There was no evidence that, under the relevant authority, the higher fine could not have been imposed at the time of the offence. The higher fine therefore did not attract the operation of s 27(2) (MacDonald v County Court of Victoria [2013] VSC 109 [68]-[73]; Director of Public Prosecutions (DPP) v Leys (2012) 44 VR 1; [2012] VSCA 304 [130]-[134]).
  21. Similarly, the relevant sentences for comparison under s 27(3) will be the maximum penalties the court would have been authorised to impose by the laws in force at the time the offences occurred and the time of sentencing respectively.
  22. It may not always be clear as to whether a later penalty is ‘greater’ or has been ‘reduced’ compared to that at the time of the offence, where the penalties are different. It may be difficult, for example, to determine the comparative severity of a heavy fine and a short term of imprisonment (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [15.08]).
  23. It is possible that s 27(3) extends to retroactive decriminalisation of an offence. Under the ICCPR, where the relevant conduct was no longer an offence at the time of sentencing, the ‘lighter penalty’, which was no penalty at all, was retrospectively applied under art 15(1) (UN Human Rights Committee,, Views: Communication No 1760/2008 (Cochet v France), 100th sess, UN Doc CCPR/C/100/D/1760/2008, (21 October 2010), [7.3]-[7.4])

    Intermediate penalty reductions

  24. In AMP, the applicant had committed an offence of indecent assault in 1958. At the time the offence carried a maximum penalty of 10 years imprisonment. The maximum penalty was reduced to five years in 1967, but in 1991 an offence criminalising the same conduct was introduced, with a maximum penalty of 10 years imprisonment. That was also the maximum penalty at the time of the applicant’s sentencing in 2009. On appeal, the applicant argued that s 114(2) of the Sentencing Act 1991 required the judge to sentence the applicant on the basis that the reduction of the maximum penalty to five years imprisonment should apply. The Court of Appeal found that neither s 114(2) nor s 27(2) required the sentencing judge to sentence on the basis that the five year maximum penalty which applied between 1958 and 1991 was relevant, as the maximum penalty that applied at the time of the offence was the same as at the time of sentencing (AMP v The Queen [2010] VSCA 48 [28]-[29]).
  25. The Court in AMP considered s 27(2), although it is s 27(3) that corresponds more closely with s 114(2) of the Sentencing Act. It is likely that, following AMP, s 27(3) would not apply in circumstances where the sentence for an offence is reduced temporarily between the time of the offending and the time of sentencing.

    Current sentencing practices

  26. Section 27(2) has also been considered in the context of s 5(2)(b) of the Sentencing Act 1991, which requires courts to have regard to ‘current sentencing practices’ in sentencing an offender.
  27. In AMP, the Court found that construing the words ‘current sentencing practices’ in s 5(2)(b) as meaning the sentencing practices current at the time the offence was committed would be consistent with the Charter and with s 114 of the Sentencing Act. The Court found that even if the phrase referred to sentencing practices at the time of sentencing, then it would give those practices no weight where a different practice existed when the offence was committed. The maximum sentence and the range of available sentences relevant at the time the applicant committed the offences were found to be the relevant considerations, since, in that case, they were lower than those at the time of sentencing (AMP v The Queen [2010] VSCA 48 [30]-[32]).
  28. Later, in Stalio, the Court of Appeal confirmed that ‘current sentencing practices’ in s 5(2)(b) of the Sentencing Act referred to sentencing practices at the time of sentence (Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120 [11]-[14], [78]).
  29. However, the Court found that, irrespective of the meaning of ‘current sentencing practices’, the principle of equal justice, and the requirement in s 5(1) of the Sentencing Act that punishment must be just, meant that the court must take past sentencing practices into account when sentencing historical offences not merely as an outer limit, but as a guide to the appropriate sentence (Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120 [50]-[54]).
  30. The Court of Appeal found that:

    It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time (Stalio v The Queen [2012] VSCA 120 [53]).

    Specific limitations: s 27(4)

  31. Section 27(4) limits the rights in ss 27(1)-(3) by providing that they do not ‘affect[] 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’.
  32. Certain conduct recognised as criminal at international law is already criminalised under Australian law. For example, the Criminal Code (Cth) criminalises ‘genocide, crimes against humanity and crimes against the administration of the justice of the International Criminal Court’. These offences mirror arts 5-8 of the Rome Statute of the International Criminal Court.
  33. However, to the extent that conduct was not criminalised under domestic law at the time of offence, or was subject to a different penalty, it may not come within the scope of the rights in ss 27(1)-(3) if that conduct was recognised as criminal under international law at the time of the offending.
  34. Section 27(4) is consistent with the position at common law. In Polyukhovich, a majority of the High Court upheld the validity of legislation that retrospectively criminalised war crimes through an amendment to the War Crimes Act 1945. The crimes in question were not criminal offences in Australia at the time of their commission, but were ‘heinous offences … against the laws and customs of war’ and the legislation was found to be a valid exercise of the external affairs power under the Constitution (Polyukhovich v Commonwealth (‘War Crimes Act case’) [1991] HCA 32; (1991) 172 CLR 501).
  35. The relationship between the specific limitations clauses in the Charter, such as s 27(4), and the general limitations clause in s 7(2) is not clearly articulated.
  36. On one approach, internal limitations reduce the scope or ‘plain state’ of the right. If the conduct in question is found to meet the requirements of the specific or internal limitation, the right is not considered to be ‘limited’, and so the general limitations analysis in s 7(2) will not be relevant (Magee v Delaney (2012) 39 VR 50; [2012] VSC 407 [157] (s 15); LM [2008] VCAT 2084 [117] (s 21); PJB v Melbourne Health (Patrick's case) (2011) 39 VR 373; [2011] VSC 327 [74]-[75] (s 13)).
  37. The alternative approach, set out in Kracke, is that internal limitations within the Charter rights themselves should be considered as part of a general limitations analysis under s 7(2). They should be ‘seen as an indication of what might be considered in determining whether any limitations are reasonable and justified’, rather than to reduce the nature and content of the right in its ‘plain state’ (Kracke v Mental Health Board (2009) 29 VAR 1; [2009] VCAT 646 [109]-[110]); AC (Guardianship) [2009] VCAT 1186 [122]-[123]).
  38. However, Bell J later reconsidered the view he expressed in Kracke, in response to caselaw stating that s 7(2) does not form part of the process of interpretation required by s 32(1) of the Charter (PJB v Melbourne Health (Patrick's case) 2011) 39 VR 373; [2011] VSC 327 [74]-[75]). However, following the High Court decision in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, it remains an open question as to whether s 7(2) forms part of the interpretative process.

Last updated: 1 September 2017

See Also

6.21. Retrospective criminal laws (s 27)

6.21.1. Introduction

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