2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 (Attorney-General) A Bill for an Act to amend the Criminal Code Act 1995 and the Death Penalty Abolition Act 1973, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendments and repeal relating to offence of torture 3 Part 1--Main amendment 3 Criminal Code Act 1995 3 Part 2--Other amendments 7 Criminal Code Act 1995 7 Part 3--Repeal 8 Crimes (Torture) Act 1988 8 Schedule 2--Amendments relating to the abolition of the death penalty 9 Death Penalty Abolition Act 1973 9 i Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 [Page Break] 2 1995 and the Death Penalty Abolition Act 1973, and 3 for related purposes 4 The Parliament of Australia enacts: 5 1 Short title 6 This Act may be cited as the Crimes Legislation Amendment 7 (Torture Prohibition and Death Penalty Abolition) Act 2009. 8 2 Commencement 9 This Act commences on the day after this Act receives the Royal 10 Assent. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 1 [Page Break] 2 Each Act that is specified in a Schedule to this Act is amended or 3 repealed as set out in the applicable items in the Schedule 4 concerned, and any other item in a Schedule to this Act has effect 5 according to its terms. 6 2 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 [Page Break] Main amendment Part 1 1 Schedule 1--Amendments and repeal relating 2 to offence of torture 3 Part 1--Main amendment 4 Criminal Code Act 1995 5 1 At the end of Chapter 8 of the Criminal Code 6 Add: 7 Division 274--Torture 8 274.1 Definitions 9 (1) In this Division: 10 Convention means the Convention Against Torture and Other 11 Cruel, Inhuman or Degrading Treatment or Punishment adopted by 12 the General Assembly of the United Nations at New York on 13 10 December 1984. 14 Note: The text of the Convention is set out in Australian Treaty Series 1989 15 No. 21 ([1989] ATS 21). In 2009, the text of a Convention in the 16 Australian Treaty Series was accessible through the Australian 17 Treaties Library on the AustLII website (www.austlii.edu.au). 18 (2) An expression that is used both in this Division and in the 19 Convention (whether or not a particular meaning is given to it by 20 the Convention) has, in this Division, the same meaning as it has in 21 the Convention. 22 274.2 Torture 23 (1) A person (the perpetrator) commits an offence if the perpetrator: 24 (a) engages in conduct that inflicts severe physical or mental 25 pain or suffering on a person (the victim); and 26 (b) the conduct is engaged in: 27 (i) for the purpose of obtaining from the victim or from a 28 third person information or a confession; or Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 3 [Page Break] Part 1 Main amendment 1 (ii) for the purpose of punishing the victim for an act which 2 the victim or a third person has committed or is 3 suspected of having committed; or 4 (iii) for the purpose of intimidating or coercing the victim or 5 a third person; or 6 (iv) for a purpose related to a purpose mentioned in 7 subparagraph (i), (ii) or (iii); and 8 (c) the perpetrator engages in the conduct: 9 (i) in the capacity of a public official; or 10 (ii) acting in an official capacity; or 11 (iii) acting at the instigation, or with the consent or 12 acquiescence, of a public official or other person acting 13 in an official capacity. 14 Penalty: Imprisonment for 20 years. 15 (2) A person (the perpetrator) commits an offence if the perpetrator: 16 (a) engages in conduct that inflicts severe physical or mental 17 pain or suffering on a person; and 18 (b) the conduct is engaged in for any reason based on 19 discrimination of any kind; and 20 (c) the perpetrator engages in the conduct: 21 (i) in the capacity of a public official; or 22 (ii) acting in an official capacity; or 23 (iii) acting at the instigation, or with the consent or 24 acquiescence, of a public official or other person acting 25 in an official capacity. 26 Penalty: Imprisonment for 20 years. 27 (3) Absolute liability applies to paragraphs (1)(c) and (2)(c). 28 Note: For absolute liability, see section 6.2. 29 (4) Subsections (1) and (2) do not apply to conduct arising only from, 30 inherent in or incidental to lawful sanctions that are not 31 inconsistent with the Articles of the International Covenant on 32 Civil and Political Rights (a copy of the English text of which is set 33 out in Schedule 2 to the Australian Human Rights Commission Act 34 1986). 4 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 [Page Break] Main amendment Part 1 1 (5) Section 15.4 (extended geographical jurisdiction--category D) 2 applies to an offence against subsection (1) or (2). 3 274.3 Prosecutions 4 (1) Proceedings for an offence against this Division, where the conduct 5 constituting the alleged offence occurs wholly outside Australia, 6 must not take place except with the consent in writing of the 7 Attorney-General. 8 (2) Even though a consent in accordance with subsection (1) has not 9 been given in relation to an offence against this Division: 10 (a) a person may be arrested for the offence, and a warrant for 11 the arrest of a person for the offence may be issued and 12 executed; and 13 (b) a person may be charged with the offence; and 14 (c) a person so charged may be remanded in custody or on bail; 15 but no further step in proceedings referred to in subsection (1) is to 16 be taken until such a consent has been given. 17 (3) Subsection (2) does not prevent the discharge of the accused if 18 proceedings are not continued within a reasonable time. 19 274.4 No defence of exceptional circumstances or superior orders 20 It is not a defence in a proceeding for an offence under this 21 Division that: 22 (a) the conduct constituting the offence was done out of 23 necessity arising from the existence of a state of war, a threat 24 of war, internal political instability, a public emergency or 25 any other exceptional circumstance; or 26 (b) in engaging in the conduct constituting the offence the 27 accused acted under orders of a superior officer or public 28 authority; 29 but the circumstances referred to in paragraphs (a) and (b) may, if 30 the accused is convicted of the offence, be taken into account in 31 determining the proper sentence. 32 274.5 Jurisdiction of State/Territory courts preserved 33 For the purposes of section 38 of the Judiciary Act 1903, a matter 34 arising under this Division, including a question of interpretation of Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 5 [Page Break] Part 1 Main amendment 1 the Convention, is taken not to be a matter arising directly under a 2 treaty. 3 274.6 Concurrent operation intended 4 This Division is not intended to exclude or limit the concurrent 5 operation of any other law of the Commonwealth or any law of a 6 State or Territory. 7 274.7 Double jeopardy 8 If a person has been convicted or acquitted in a country outside 9 Australia of an offence against the law of that country in respect of 10 any conduct, the person cannot be convicted of an offence under 11 this Division in respect of that conduct. 12 6 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 Part 2--Other amendments 2 Criminal Code Act 1995 3 2 Paragraph 71.13(1)(a) of the Criminal Code 4 Omit "torture", substitute "the deliberate and systematic infliction of 5 severe pain over a period of time". 6 3 Subsection 71.13(4) of the Criminal Code (definition of 7 torture) 8 Repeal the definition. 9 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 7 [Page Break] Part 3 Repeal 1 Part 3--Repeal 2 Crimes (Torture) Act 1988 3 4 The whole of the Act 4 Repeal the Act. 5 8 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 [Page Break] 1 Schedule 2--Amendments relating to the 2 abolition of the death penalty 3 4 Death Penalty Abolition Act 1973 5 1 Title 6 After "Commonwealth", insert ", of the States and of the 7 Territories,". 8 2 Subsection 3(4) 9 Repeal the subsection, substitute: 10 (3) Section 6 also applies in relation to, and in relation to offences 11 under, the laws of the States. 12 (4) This Act applies in relation to offences referred to in 13 subsections (2) and (3) committed before, on or after the 14 commencement of this Act. 15 3 At the end of section 4 16 Add "referred to in subsection 3(2)". 17 4 Section 5 18 Omit "in relation to which this Act applies", substitute "referred to in 19 subsection 3(2)". 20 5 At the end of the Act 21 Add: 22 6 Death penalty must not be imposed 23 The punishment of death must not be imposed as the penalty for 24 any offence referred to in subsection 3(2) or (3). Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 No. , 2009 9