CRIMES LEGISLATION AMENDMENT (TORTURE PROHIBITION AND DEATH PENALTY ABOLITION) BILL 2010
This is a Bill, not an Act. For current law, see the Acts databases.
CRIMES LEGISLATION AMENDMENT (TORTURE PROHIBITION AND DEATH PENALTY ABOLITION) BILL 2010
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
i Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009
Contents
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
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009 1
A Bill for an Act to amend the Criminal Code Act
1
1995 and the Death Penalty Abolition Act 1973, and
2
for related purposes
3
The Parliament of Australia enacts:
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1 Short title
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This Act may be cited as the Crimes Legislation Amendment
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(Torture Prohibition and Death Penalty Abolition) Act 2009.
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2 Commencement
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This Act commences on the day after this Act receives the Royal
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Assent.
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2 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill
2009 No. , 2009
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
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according to its terms.
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6
Amendments and repeal relating to offence of torture Schedule 1
Main amendment Part 1
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009 3
Schedule 1--Amendments and repeal relating
1
to offence of torture
2
Part 1--Main amendment
3
Criminal Code Act 1995
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1 At the end of Chapter 8 of the Criminal Code
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Add:
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Division 274--Torture
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274.1 Definitions
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(1) In this Division:
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Convention means the Convention Against Torture and Other
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Cruel, Inhuman or Degrading Treatment or Punishment adopted by
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the General Assembly of the United Nations at New York on
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10 December 1984.
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Note:
The text of the Convention is set out in Australian Treaty Series 1989
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No. 21 ([1989] ATS 21). In 2009, the text of a Convention in the
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Australian Treaty Series was accessible through the Australian
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Treaties Library on the AustLII website (www.austlii.edu.au).
17
(2) An expression that is used both in this Division and in the
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Convention (whether or not a particular meaning is given to it by
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the Convention) has, in this Division, the same meaning as it has in
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the Convention.
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274.2 Torture
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(1) A person (the perpetrator) commits an offence if the perpetrator:
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(a) engages in conduct that inflicts severe physical or mental
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pain or suffering on a person (the victim); and
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(b) the conduct is engaged in:
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(i) for the purpose of obtaining from the victim or from a
27
third person information or a confession; or
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Schedule 1 Amendments and repeal relating to offence of torture
Part 1 Main amendment
4 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill
2009 No. , 2009
(ii) for the purpose of punishing the victim for an act which
1
the victim or a third person has committed or is
2
suspected of having committed; or
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(iii) for the purpose of intimidating or coercing the victim or
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a third person; or
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(iv) for a purpose related to a purpose mentioned in
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subparagraph (i), (ii) or (iii); and
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(c) the perpetrator engages in the conduct:
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(i) in the capacity of a public official; or
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(ii) acting in an official capacity; or
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(iii) acting at the instigation, or with the consent or
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acquiescence, of a public official or other person acting
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in an official capacity.
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Penalty: Imprisonment for 20 years.
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(2) A person (the perpetrator) commits an offence if the perpetrator:
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(a) engages in conduct that inflicts severe physical or mental
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pain or suffering on a person; and
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(b) the conduct is engaged in for any reason based on
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discrimination of any kind; and
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(c) the perpetrator engages in the conduct:
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(i) in the capacity of a public official; or
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(ii) acting in an official capacity; or
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(iii) acting at the instigation, or with the consent or
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acquiescence, of a public official or other person acting
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in an official capacity.
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Penalty: Imprisonment for 20 years.
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(3) Absolute liability applies to paragraphs (1)(c) and (2)(c).
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Note:
For absolute liability, see section 6.2.
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(4) Subsections (1) and (2) do not apply to conduct arising only from,
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inherent in or incidental to lawful sanctions that are not
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inconsistent with the Articles of the International Covenant on
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Civil and Political Rights (a copy of the English text of which is set
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out in Schedule 2 to the Australian Human Rights Commission Act
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1986).
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Amendments and repeal relating to offence of torture Schedule 1
Main amendment Part 1
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009 5
(5) Section 15.4 (extended geographical jurisdiction--category D)
1
applies to an offence against subsection (1) or (2).
2
274.3 Prosecutions
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(1) Proceedings for an offence against this Division, where the conduct
4
constituting the alleged offence occurs wholly outside Australia,
5
must not take place except with the consent in writing of the
6
Attorney-General.
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(2) Even though a consent in accordance with subsection (1) has not
8
been given in relation to an offence against this Division:
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(a) a person may be arrested for the offence, and a warrant for
10
the arrest of a person for the offence may be issued and
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executed; and
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(b) a person may be charged with the offence; and
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(c) a person so charged may be remanded in custody or on bail;
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but no further step in proceedings referred to in subsection (1) is to
15
be taken until such a consent has been given.
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(3) Subsection (2) does not prevent the discharge of the accused if
17
proceedings are not continued within a reasonable time.
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274.4 No defence of exceptional circumstances or superior orders
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It is not a defence in a proceeding for an offence under this
20
Division that:
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(a) the conduct constituting the offence was done out of
22
necessity arising from the existence of a state of war, a threat
23
of war, internal political instability, a public emergency or
24
any other exceptional circumstance; or
25
(b) in engaging in the conduct constituting the offence the
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accused acted under orders of a superior officer or public
27
authority;
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but the circumstances referred to in paragraphs (a) and (b) may, if
29
the accused is convicted of the offence, be taken into account in
30
determining the proper sentence.
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274.5 Jurisdiction of State/Territory courts preserved
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For the purposes of section 38 of the Judiciary Act 1903, a matter
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arising under this Division, including a question of interpretation of
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Schedule 1 Amendments and repeal relating to offence of torture
Part 1 Main amendment
6 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill
2009 No. , 2009
the Convention, is taken not to be a matter arising directly under a
1
treaty.
2
274.6 Concurrent operation intended
3
This Division is not intended to exclude or limit the concurrent
4
operation of any other law of the Commonwealth or any law of a
5
State or Territory.
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274.7 Double jeopardy
7
If a person has been convicted or acquitted in a country outside
8
Australia of an offence against the law of that country in respect of
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any conduct, the person cannot be convicted of an offence under
10
this Division in respect of that conduct.
11
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Amendments and repeal relating to offence of torture Schedule 1
Other amendments Part 2
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009 7
Part 2--Other amendments
1
Criminal Code Act 1995
2
2 Paragraph 71.13(1)(a) of the Criminal Code
3
Omit "torture", substitute "the deliberate and systematic infliction of
4
severe pain over a period of time".
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3 Subsection 71.13(4) of the Criminal Code (definition of
6
torture)
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Repeal the definition.
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9
Schedule 1 Amendments and repeal relating to offence of torture
Part 3 Repeal
8 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill
2009 No. , 2009
Part 3--Repeal
1
Crimes (Torture) Act 1988
2
4 The whole of the Act
3
Repeal the Act.
4
5
Amendments relating to the abolition of the death penalty Schedule 2
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
No. , 2009 9
Schedule 2--Amendments relating to the
1
abolition of the death penalty
2
3
Death Penalty Abolition Act 1973
4
1 Title
5
After "Commonwealth", insert ", of the States and of the
6
Territories,".
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2 Subsection 3(4)
8
Repeal the subsection, substitute:
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(3) Section 6 also applies in relation to, and in relation to offences
10
under, the laws of the States.
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(4) This Act applies in relation to offences referred to in
12
subsections (2) and (3) committed before, on or after the
13
commencement of this Act.
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3 At the end of section 4
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Add "referred to in subsection 3(2)".
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4 Section 5
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Omit "in relation to which this Act applies", substitute "referred to in
18
subsection 3(2)".
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5 At the end of the Act
20
Add:
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6 Death penalty must not be imposed
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The punishment of death must not be imposed as the penalty for
23
any offence referred to in subsection 3(2) or (3).
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