Last updated 1 December 2020
Section 35 of the Human Rights Act 2019 (Qld) (Human Rights Act) protects people from being unfairly punished where there is a change in criminal law since the offence was committed.
Under subs 35(1), if certain conduct becomes illegal only after a person has committed it, they cannot be found guilty of that offence. Subsection 35(2) provides that a person must not be punished to an extent greater than the penalty that existed at the time of the offence. However, under subsection 35(3), if the penalty decreases after a person is found guilty, they may apply for a reduced sentence.
Section 35 only applies to changes in penalty or punishment, and does not impact procedural retrospective changes to the law.
Section 35 is limited where the relevant conduct constituted an offence in international law at the time of its commission and was later established as an offence in Queensland. This may include crimes against humanity or war crimes that were not crimes against Queensland law when they were committed to be later punished by retrospective laws in Queensland. This limitation is contained in subs 35(5).
The rights in relation to retrospective criminal laws will also be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to protection from retrospective criminal laws may be engaged where new criminal offences are created, or existing criminal offences are amended (e.g. where, during sentencing for a criminal offence, the maximum penalty for a criminal law has increased since the offence was committed).
This example has been adapted from an Australian case. It is provided by way of example only, and is not a substitute for legal advice.