What the Act says
The Human Rights Act reflects the long recognised criminal law principle that there can be no crime and no punishment, other than as established by law.
This right is based on Article 15 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
Scope of the right
Prohibition on retrospective criminal laws
Subsection (1) prohibits finding someone guilty of an offence for conduct that was not a criminal offence at the time it was committed. This reflects the principal that criminal offences must be clearly defined by law.
The right is unlikely to prohibit retrospective changes to criminal procedures, for example, changes to the rules of evidence.
Penalties for criminal offences
Subsections (2) and (3) address penalties for criminal offences:
- A person cannot receive a penalty greater than what applied at the time the offence was committed.
- If the penalty for an offence is reduced before sentencing, the person is eligible for the reduced penalty.
This is reflected in section 180 of the Penalties and Sentences Act 1992.
Exception for international law
Subsection (4) provides that nothing in section 35 affects the trial or punishment of a person for acts that were not criminal under Queensland law at the time but were offences under international law, such as war crimes, genocide, or crimes against humanity. This allows crimes against international law to be punished by retrospective domestic criminal laws.
Reasonable limits
These rights can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Case examples
Declaration that a child is a serious repeat offender was not retrospective criminal law
The Children’s Court declared that a child was a serious repeat offender under s 150A of the Youth Justice Act.
Prior to making the declaration, the court considered submissions by the defence that section 150A was not valid at common law and under the Legislative Standards Act 1992 because it affected an existing right or obligation retrospectively. The court concluded section 150A was procedural rather than substantive, and therefore the common law presumption against retrospectivity did not apply. Further, any presumption against retrospectivity can be overcome by express legislative provision, provided sufficient regard is given by Parliament to the principles in the Legislative Standards Act 1992, which was the case here.
Section 35 of the Human Rights Act was not considered.
R v DT [2023] QChC 8
This information is not intended to be a substitute for legal advice.