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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Criminal Code
Amendment (United Nations and Associated Personnel) Bill
2000
No. ,
2000
(Attorney-General)
A
Bill for an Act to protect United Nations and associated personnel, and for
related purposes
ISBN: 0642 439060
Contents
Criminal Code Act
1995 3
A Bill for an Act to protect United Nations and
associated personnel, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Criminal Code Amendment (United Nations
and Associated Personnel) Act 2000.
(1) Subject to subsection (2), this Act commences on a day to be
fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the
period of 6 months beginning on the day on which it receives the Royal Assent,
it commences on the first day after the end of that period.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 The Schedule (after Division 70 of
Chapter 4 of the Criminal Code)
Insert:
The purpose of this Division is to protect United Nations and associated
personnel and give effect to the Convention on the Safety of United
Nations and Associated Personnel.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the death of another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, the death of the UN or associated person or any other person by the
conduct.
Maximum penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the death of another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, serious harm to the UN or associated person or any other person by the
conduct.
Maximum penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes serious harm to another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person intends to cause serious harm to the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 20 years.
Maximum penalty (aggravated offence): Imprisonment for 25 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes serious harm to another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person is reckless as to causing serious harm to
the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm to another person without the
consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person intends to cause harm to the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 10 years.
Maximum penalty (aggravated offence): Imprisonment for 13 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm to another person without the
consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person is reckless as to causing harm to the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 7 years.
Maximum penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person sexually penetrates another person without the consent of
that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person knows about, or is reckless as to, the lack
of consent.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 20 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(4) In this section, being reckless as to a lack of consent
to sexual penetration includes not giving any thought to whether or not the
person is consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a person
include surgically constructed genitalia or other parts of the body of the
person.
(1) A person is guilty of an offence if:
(a) the person takes or detains another person without his or her consent;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(d) the first-mentioned person takes or detains the UN or associated
person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or another
person.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under
a law of the Commonwealth, a State or Territory or a foreign law the maximum
penalty for which is death, or imprisonment for not less than 12
months.
(1) A person is guilty of an offence if:
(a) the person takes or detains another person without that other
person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action.
Maximum penalty: Imprisonment for 5 years.
Maximum penalty (aggravated offence): Imprisonment for 6 years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(1) A person is guilty of an offence if:
(a) the person’s conduct causes damage to official premises, private
accommodation or a means of transportation (the property);
and
(b) the property is occupied or used by a UN or associated person;
and
(c) the conduct gives rise to a danger of serious harm to a person;
and
(d) that person is the UN or associated person referred to in
paragraph (b); and
(e) the UN or associated person is engaged in a UN operation that is not a
UN enforcement action; and
(f) the first-mentioned person intends to cause the damage to the
property; and
(g) the first-mentioned person is reckless as to the danger to the person
referred to in paragraph (c).
Maximum penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement
action, UN operation and UN or associated
person.
(2) Strict liability applies to paragraphs (1)(b), (d) and
(e).
A person is guilty of an offence if the person:
(a) threatens to commit an offence (the threatened offence)
under any of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act by
making the threat.
Maximum penalty:
(a) if the threatened offence is the offence under section 71.2
(murder of a UN or associated person)—imprisonment for 10 years;
or
(b) if the threatened offence is the offence under section 71.3,
71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping,
or sexually penetrating, a UN or associated person)—imprisonment for 7
years; or
(c) if the threatened offence is the offence under section 71.6 or
71.11 (causing harm to, or damaging the property etc. of, a UN or associated
person)—imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or
71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated
person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or associated
person.
(1) For the purposes of this Division, an offence against
section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated
offence if:
(a) the offence was committed during torture; or
(b) the offence was committed by the use or threatened use of an offensive
weapon; or
(c) the offence was committed against a person in an abuse of
authority.
(2) If the prosecution intends to prove an aggravated offence, the charge
must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove
that the defendant intended to commit, or was reckless as to committing, the
matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use for causing injury to, or
incapacitating, a person; or
(b) an article where the person who has the article intends, or threatens
to use, the article to cause injury to, or to incapacitate, another
person.
torture means the deliberate and systematic infliction of
severe pain over a period of time.
A person is not criminally responsible for an offence against
section 71.4 or 71.5 if the conduct causing serious harm to another person
is engaged in by the first-mentioned person:
(a) for the purpose of benefiting the other person or in pursuance of a
socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the conduct was
reasonable.
Note 1: If a person causes less than serious harm to another
person, the prosecution is obliged to prove that the harm was caused without the
consent of the person harmed (see for example
section 71.6).
Note 2: A defendant bears an evidential burden in relation
to the matter in this section, see subsection 13.3(3).
A person is not criminally responsible for an offence against
section 71.8 in respect of any sexual penetration carried out in the course
of a procedure in good faith for medical or hygienic purposes.
Note: A defendant bears an evidential burden in relation to
the matter in this section, see subsection 13.3(3).
(1) A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian
ship; or
(b) the conduct constituting the alleged offence occurs wholly outside
Australia and:
(i) at the time of the alleged offence, the person is an Australian
citizen; or
(ii) at the time of the alleged offence, the person is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
or
(iii) at the time of the alleged offence, the person is a stateless person
whose habitual residence is in Australia; or
(iv) the conduct is subject to the jurisdiction of another State Party to
the Convention established in accordance with paragraph 1 or 2 of article 10 and
the person enters Australia; or
(c) the alleged offence is committed against an Australian citizen;
or
(d) by engaging in the conduct constituting the alleged offence, the
person intends to compel a legislative, executive or judicial institution of the
Commonwealth, a State or a Territory to do or omit to do an act.
(2) In this section:
Australian aircraft means:
(a) an aircraft registered, or required to be registered, under the Civil
Aviation Regulations as an Australian aircraft; or
(b) an aircraft (other than a defence aircraft) that is owned by, or in
the possession or control of, a Commonwealth entity; or
(c) a defence aircraft.
Australian ship means:
(a) a ship registered, or required to be registered, under the Shipping
Registration Act 1981; or
(b) an unregistered ship that has Australian nationality; or
(c) a defence ship.
defence aircraft means an aircraft of any part of the
Australian Defence Force, and includes an aircraft that is being commanded or
piloted by a member of that Force in the course of his or her duties as such a
member.
defence ship means a ship of any part of the Australian
Defence Force, and includes a ship that is being operated or commanded by a
member of that Force in the course of his or her duties as such a
member.
(1) A State or Territory court does not have jurisdiction to determine a
charge of an offence under this Division if the conduct constituting the
offence also constitutes an offence (the State offence) against
the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a person under this Division;
and
(b) a court finds that there is a corresponding State offence;
then this section does not prevent the person from being prosecuted for the
State offence.
If a person has been convicted or acquitted of an offence in respect of
conduct under the law of a foreign country, the person cannot be convicted of an
offence under this Division in respect of that conduct.
This Division is not intended to exclude or limit the operation of any
other law of the Commonwealth or of a State or Territory.
(1) Proceedings for an offence under this Division must not be commenced
without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Division before the
necessary consent has been given.
(1) The Minister for Foreign Affairs may issue a certificate stating any
of the following matters:
(a) the Convention entered into force for Australia on a specified
day;
(b) the Convention remains in force for Australia or any other State
Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State
Party under paragraph 1 or 2 of article 10 of the Convention;
(d) a matter relevant to whether a person is or was a UN or associated
person;
(e) a matter relevant to whether an operation is or was a UN
operation.
(2) The Minister for Immigration and Multicultural Affairs may issue a
certificate stating that:
(a) a person is or was an Australian citizen at a particular time;
or
(b) a person is or was a stateless person whose habitual residence is or
was in Australia.
(3) In any proceedings, a certificate under this section is prima facie
evidence of the matters in the certificate.
For the purposes of section 38 of the Judiciary Act 1903, a
matter arising under this Act, including a question of interpretation of the
Convention, is taken not to be a matter arising directly under a
treaty.
(1) In this Division:
associated personnel means:
(a) persons assigned by a government, or an intergovernmental
organisation, with the agreement of the competent organ of the United Nations;
or
(b) persons engaged by the Secretary-General of the United Nations, a
specialised agency or the International Atomic Energy Agency; or
(c) persons deployed by a humanitarian non-governmental organisation or
agency under an agreement with the Secretary-General of the United Nations, a
specialised agency or the International Atomic Energy Agency;
to carry out activities in support of the fulfilment of the mandate of a UN
operation.
Convention means the Convention on the Safety of United
Nations and Associated Personnel, done at New York on 9 December
1994.
Note: The text of the Convention is set out in Australian
Treaty Series 1995 No. 1. In 2000 this was available in the Australian
Treaties Library of the Department of Foreign Affairs and Trade, accessible on
the Internet through that Department’s world-wide web
site.
UN enforcement action means a UN operation:
(a) that is authorised by the Security Council as an enforcement action
under Chapter VII of the Charter of the United Nations; and
(b) in which any of the UN or associated personnel are engaged as
combatants against organised armed forces; and
(c) to which the law of international armed conflict applies.
UN operation means an operation established by the competent
organ of the United Nations in accordance with the Charter of the United Nations
and conducted under United Nations authority and control if:
(a) the operation is for the purpose of maintaining or restoring
international peace and security; or
(b) the Security Council or the General Assembly has declared, for the
purposes of the Convention, that there exists an exceptional risk to the safety
of the personnel engaged in the operation.
UN or associated person means a person who is a member of any
UN personnel or associated personnel.
UN personnel means:
(a) persons engaged or deployed by the Secretary-General of the United
Nations as members of the military, police or civilian components of a UN
operation; or
(b) any other officials or experts on mission of the United Nations, its
specialised agencies or the International Atomic Energy Agency who are present
in an official capacity in the area where a UN operation is being
conducted.
(2) In this Division, a person’s conduct causes death
or harm if it substantially contributes to the death or harm.
2 The Dictionary of the Criminal
Code
Insert:
death means:
(a) the irreversible cessation of all function of a person’s brain
(including the brain stem); or
(b) the irreversible cessation of circulation of blood in a person’s
body.
3 The Dictionary of the Criminal
Code
Insert:
detaining a person includes causing the person to remain
where he or she is.
4 The Dictionary of the Criminal
Code
Insert:
harm means physical harm or harm to a person’s mental
health, whether temporary or permanent. However, it does not include being
subjected to any force or impact that is within the limits of what is acceptable
as incidental to social interaction or to life in the community.
5 The Dictionary of the Criminal
Code
Insert:
harm to a person’s mental health includes significant
psychological harm, but does not include mere ordinary emotional reactions such
as those of only distress, grief, fear or anger.
6 The Dictionary of
the Criminal
Code
Insert:
physical harm includes unconsciousness, pain, disfigurement,
infection with a disease and any physical contact with a person that the person
might reasonably object to in the circumstances (whether or not the person was
aware of it at the time).
7 The Dictionary of the Criminal
Code
Insert:
serious harm means harm (including the cumulative effect of
any harm):
(a) that endangers, or is likely to endanger, a person’s life;
or
(b) that is or is likely to be significant and longstanding.
8 The Dictionary of the Criminal
Code
Insert:
sexually penetrate is defined in section 71.8.
9 The Dictionary of the Criminal
Code
Insert:
taking a person includes causing the person to accompany
another person and causing the person to be taken.