Commonwealth Numbered Acts

WAR CRIMES AMENDMENT ACT 1988No. 3, 1989 - SECT 5

5. Sections 3 to 14, inclusive, of the Principal Act are repealed and the
following section and Parts are substituted: Application

"3. This Act extends to all external Territories and has extra-territorial
operation according to its tenor.
                             "PART II-INTERPRETATION
Effect of this Part

"4. The provisions of this Part have effect for the purposes of this Act,
except so far as the contrary intention appears in this Act. Interpretation

"5. Unless the contrary intention appears:
'act' includes omission;
'do' includes make;
'occupation' means:

   (a)  an occupation of territory arising out of a war; or

   (b)  without limiting the generality of paragraph (a), an occupation of
        territory in Latvia, Lithuania or Estonia as a direct or indirect
        result of:

        (i)    the agreement of 23 August 1939 between Germany and the Union
               of Soviet Socialist Republics; or

        (ii)   any protocol to that agreement;
'person' means a natural person, whether or not the person is or has ever
been:

   (a)  an Australian citizen;

   (b)  a resident of Australia;

   (c)  a British subject; or

   (d)  a citizen of a country allied or associated with Australia in relation
        to the conduct of a war;
'proceeding', in relation to an offence, means:

   (a)  a proceeding for commitment for trial in respect of the offence; or

   (b)  a prosecution on indictment for the offence;
'war' means:

   (a)  a war, whether declared or not;

   (b)  any other armed conflict between countries; or

   (c)  a civil war or similar armed conflict;
(whether or not involving Australia or a country allied or associated with
Australia) in so far as it occurred in Europe in the period beginning on 1
September 1939 and ending on 8 May 1945. Serious crimes

"6. (1) An act is a serious crime if it was done in a part of Australia and
was, under the law then in force in that part, an offence, being:

   (a)  murder;

   (b)  manslaughter;

   (c)  causing grievous bodily harm;

   (d)  wounding;

   (e)  rape;

   (f)  indecent assault;

   (g)  abduction, or procuring, for immoral purposes;

   (h)  an offence (in this paragraph called the 'variant offence') that would
        be referred to in a preceding paragraph if that paragraph contained a
        reference to:

        (i)    a particular intention or state of mind on the offender's part;
               or

        (ii)   particular circumstances of aggravation; necessary to
               constitute the variant offence;

   (j)  an offence whose elements are substantially the same as the elements
        of an offence referred to in any of paragraphs (a) to (h), inclusive;
        or

   (k)  an offence of:

        (i)    attempting or conspiring to commit;

        (ii)   aiding, abetting, counselling or procuring the commission of;
               or

        (iii)  being, by act or omission, in any way, directly or indirectly,
               knowingly concerned in, or party to, the commission of;
an offence referred to in any of paragraphs (a) to (j), inclusive.

"(2) In determining for the purposes of subsection (1) whether or not an act
was, under the law in force at a particular time in a part of Australia, an
offence of a particular kind, regard shall be had to any defence under that
law that could have been established in a proceeding for the offence.

"(3) An act is a serious crime if:

   (a)  it was done at a particular time outside Australia; and

   (b)  the law in force at that time in some part of Australia was such that
        the act would, had it been done at that time in that part, be a
        serious crime by virtue of subsection (1).

"(4) The deportation of a person to, or the internment of a person in, a death
camp, a slave labour camp, or a place where persons are subjected to treatment
similar to that undergone in a death camp or slave labour camp, is a serious
crime.

"(5) Each of the following is a serious crime:

   (a)  attempting or conspiring to deport or intern a person as mentioned in
        subsection (4);

   (b)  aiding, abetting, counselling or procuring the deportation or
        internment of a person as so mentioned;

   (c)  being, by act or omission, in any way, directly or indirectly,
        knowingly concerned in, or party to, the deportation or internment of
        a person as so mentioned.

"(6) For the purposes of subsections (3), (4) and (5), the fact that the doing
of an act was required or permitted by the law in force when and where the act
was done shall be disregarded. War crimes

"7. (1) A serious crime is a war crime if it was committed:

   (a)  in the course of hostilities in a war;

   (b)  in the course of an occupation;

   (c)  in pursuing a policy associated with the conduct of a war or with an
        occupation; or

   (d)  on behalf of, or in the interests of, a power conducting a war or
        engaged in an occupation.

"(2) For the purposes of subsection (1), a serious crime was not committed:

   (a)  in the course of hostilities in a war; or

   (b)  in the course of an occupation; merely because the serious crime had
        with the hostilities or occupation a connection (whether in time, in
        time and place, or otherwise) that was only incidental or remote.

"(3) A serious crime is a war crime if it was:

   (a)  committed:

        (i)    in the course of political, racial or religious persecution; or

        (ii)   with intent to destroy in whole or in part a national, ethnic,
               racial or religious group, as such; and

   (b)  committed in the territory of a country when the country was involved
        in a war or when territory of the country was subject to an
        occupation.

"(4) Two or more serious crimes together constitute a war crime if:

   (a)  they are of the same or a similar character;

   (b)  they form, or are part of, a single transaction or event; and

   (c)  each of them is also a war crime by virtue of either or both of
        subsections (1) and (3). Effect of sections 6 and 7 "8. (1) Subject to
        subsection 7 (2), nothing in section 6 or 7 limits the generality of
        anything else in that section.

"(2) An act may be a serious crime by virtue of one of more of subsections 6
(1), (3), (4) and (5), but not otherwise.

"(3) A serious crime may be a war crime by virtue of either or both of
subsections 7 (1) and (3), but not otherwise.

"(4) Two or more serious crimes may together constitute a war crime by virtue
of subsection 7 (4), but not otherwise.

"PART III-WAR CRIMES War crime to be indictable offence

"9. (1) A person who:

   (a)  on or after 1 September 1939 and on or before 8 May 1945; and

   (b)  whether as an individual or as a member of an organisation; committed
        a war crime is guilty of an indictable offence against this Act.

"(2) Sections 5 and 7, and paragraph 86 (1) (a), of the Crimes Act 1914 do not
apply in relation to an offence against this Act. Punishment

"10. (1) The punishment for an offence against this Act involving the wilful
killing of a person is imprisonment for life or for any lesser term.

"(2) The punishment for any other offence against this Act is imprisonment for
not more than 25 years. Only Australian citizens or residents to be prosecuted

"11. A person shall not be charged with an offence against this Act unless he
or she is:

   (a)  an Australian citizen; or

   (b)  a resident of Australia or of an external Territory. Who may prosecute

"12. An offence against this Act may only be prosecuted in the name of the
Attorney-General or the Director of Public Prosecutions. Jurisdiction of
courts and choice of law

"13. (1) Section 68 of the Judiciary Act 1903 applies in relation to an
offence against this Act as if a reference in that section to a Territory did
not include a reference to an external Territory.

"(2) Where a person is charged with an offence against this Act, then, for the
purposes of:

   (a)  determining whether a court of a State or internal Territory has
        jurisdiction in relation to the offence;

   (b)  an exercise of jurisdiction by such a court in relation to the
        offence;

   (c)  a proceeding connected with such an exercise of jurisdiction; and

   (d)  an appeal arising out of, or out of a proceeding connected with, such
        an exercise of jurisdiction; this Act has effect, in relation to an
        act that is, or is alleged to be, the offence, as if:

   (e)  a reference in subsection 6 (3) or section 18 to a part of Australia
        were a reference to that State or Territory; and

   (f)  without limiting subsection 6 (2), all defences under the law in force
        in that State or Territory when the person is charged with the offence
        had been defences under the law in force in that State or Territory at
        the time of the act.

"(3) Where:

   (a)  it is sought in a proceeding for an offence against this Act to
        establish for the purposes of subsection 6 (2) that a particular
        defence could have been established in a proceeding (in this
        subsection called the 'other proceeding') for an offence; and

   (b)  in the other proceeding, the onus of establishing the defence would
        have lain on the defendant; then, in the first-mentioned proceeding,
        the onus of establishing that the defence could have been established
        in the other proceeding lies on the defendant.

"(4) Nothing in Part II or subsection 9 (1) shall be taken to exclude, limit
or otherwise prejudice:

   (a)  the application in proceedings for offences against this Act of the
        normal rules of evidence and procedure that apply in proceedings for
        offences against the laws of the Commonwealth; or

   (b)  any of the powers of a court in respect of proceedings for offences
        against the laws of the Commonwealth, including, but not limited to,
        the powers of a court to take action to prevent an abuse of process.

"(5) Where, on the trial of a person for an offence against this Act, the
person satisfies the judge, on the balance of probabilities, that:

   (a)  the person is unable to obtain evidence that he or she would, but for
        the lapse of time or some other reason beyond his or her control, have
        been able to obtain;

   (b)  the person's inability to obtain that evidence has substantially
        prejudiced, or will substantially prejudice, the preparation or
        conduct of his or her defence; and

   (c)  the interests of justice require the making of an order under this
        subsection; the judge may make such order as he or she thinks
        appropriate for a stay of proceedings for the offence.

"(6) Nothing in subsections (4) and (5) limits the generality of anything else
in those subsections. Objection to venue

"14. (1) This section applies where a proceeding for an offence against this
Act is being held in a State or internal Territory.

"(2) The defendant may apply to the magistrate or judge for an order that all
proceedings for the offence be held in another State or internal Territory.

"(3) An application may only be made:

   (a)  as soon as reasonably practicable after the defendant is charged with
        the offence; or

   (b)  at such later time as the magistrate or judge allows.

"(4) If an application is made, the magistrate or judge shall, unless he or
she is satisfied on the balance of probabilities that the defendant, when
charged with the offence:

   (a)  was a resident of the State or Territory referred to in subsection
        (1); or

   (b)  was not a resident of that other State or Territory; order that all
        proceedings for the offence be held in that other State or Territory.

"(5) An order under this section is subject to appeal or review to the same
extent, and in the same manner, as any other order or decision by the
magistrate or judge made in the proceeding.

"(6) For the purposes of this section, the Australian Capital Territory and
the Jervis Bay Territory constitute a single Territory. Effect of order for
change of venue

"15. (1) This section applies where:

   (a)  a proceeding for an offence against this Act is being held in a State
        or internal Territory; and

   (b)  the magistrate or judge orders under section 14 that all proceedings
        for the offence be held in another State or internal Territory.

"(2) The magistrate or judge may order that the defendant be taken, as soon as
practicable, in the custody of a specified person, to that other State or
Territory and there delivered into the custody of a person having authority to
arrest him or her.

"(3) The magistrate or judge may make such further orders as he or she thinks
necessary to facilitate the carrying into effect of an order made under
subsection (2).

"(4) While the order under section 14 is in force:

   (a)  a proceeding for the offence shall not be held except in that other
        State or Territory; and

   (b)  the defendant is not entitled to apply to a magistrate or judge in
        that other State or Territory for an order under section 14 in
        relation to the offence. No defence of superior orders

"16. Subject to subsections 6 (2) and 13 (2), the fact that, in doing an act
alleged to be an offence against this Act, a person acted under orders of his
or her government or of a superior is not a defence in a proceeding for the
offence, but may, if the person is convicted of the offence, be taken into
account in determining the proper sentence. Defence based on laws, customs and
usages of war

"17. (1) This section has effect for the purposes of a proceeding for an
offence against this Act.

"(2) Subject to section 16, it is a defence if the doing by the defendant of
the act alleged to be the offence:

   (a)  was permitted by the laws, customs and usages of war; and

   (b)  was not under international law a crime against humanity.

"(3) To avoid doubt, the doing of the act by the defendant was permitted by
the laws, customs and usages of war if it was reasonably justified by the
exigencies and necessities of the conduct of war.

"(4) The defendant is not entitled to rely on a defence under subsection (2)
unless there is evidence of the existence of the facts constituting the
defence.

"(5) However, if there is such evidence, the onus of establishing, beyond a
reasonable doubt, that those facts either do not exist or do not constitute
the defence lies on the prosecution. Alternative verdicts

"18. (1) This section has effect where:

   (a)  a person (in this section called the 'accused') is charged with an
        offence (in this section called the 'offence charged') against this
        Act;

   (b)  the offence charged is alleged to be an act that, under the law in
        force in a part of Australia at the time of the act, was, or would
        have been had it been done in that part at that time, an offence of a
        particular kind;

   (c)  on the accused's trial for the offence charged, the jury:

        (i)    is not satisfied that the accused is guilty of the offence
               charged but is satisfied that he or she is guilty of a
               different offence (in this section called the 'alternative
               offence') against this Act; and

        (ii)   is satisfied that the alternative offence is an act that, under
               the law in force in that part at the time of the last-mentioned
               act, was, or would have been had it been done in that part at
               the last-mentioned time, an offence of another kind, being an
               offence referred to in a paragraph of subsection 6 (1); and

   (d)  by virtue of the law in force in that part at the time referred to in
        paragraph (b) or at the time of the trial, a person charged with an
        offence of the kind referred to in paragraph (b) could in certain
        circumstances be found not guilty of the last-mentioned offence but
        guilty of an offence of the kind referred to in subparagraph (c) (ii).

"(2) The jury may find the accused not guilty of the offence charged but
guilty of the alternative offence.

"(3) If the jury does so, it shall, when returning its verdict, tell the judge
that it is satisfied as mentioned in subparagraph (1) (c) (ii) and specify to
the judge the kind of offence referred to in that subparagraph. Legal
assistance

"19. (1) A person who has been, or is about to be, charged with an offence
against this Act may apply to the Attorney-General for assistance under this
section.

"(2) If the Attorney-General is satisfied that in all the circumstances it is
appropriate and reasonable to grant an application made under this section, he
or she may authorise the provision by the Commonwealth to the applicant of
such legal or financial assistance in connection with a proceeding for the
offence as the Attorney-General determines.

"(3) An authorisation under subsection (2) may be made subject to such
conditions (if any) as the Attorney-General determines.

"(4) In considering an application made under this section, the
Attorney-General shall have regard to any hardship to the applicant that
refusal of the application would involve.

"(5) As soon as practicable after deciding to refuse an application made under
this section, the Attorney-General shall give the applicant a written notice
that:

   (a)  sets out the decision and the reasons for it; and

   (b)  requests the applicant to consent in writing to a copy of the notice
        being laid before each House of the Parliament in accordance with
        subsection (6).

"(6) Where an applicant gives a consent in writing pursuant to a request under
subsection (5), the Attorney-General shall cause a copy of the notice to which
the consent relates to be laid before each House of the Parliament within 15
sitting days of that House after the Attorney-General receives the consent.
Certain provisions enacted to avoid doubt

"20. Subsection 6 (6) and section 16 are enacted to avoid doubt. Annual report

"21. (1) The Attorney-General shall, as soon as practicable after 30 June in
each year:

   (a)  cause a report about the operation of this Act during the year ending
        on that 30 June to be prepared; and

   (b)  cause a copy of the report to be laid before each House of the
        Parliament within 15 sitting days of that House after the report is
        prepared.

"(2) A report under subsection (1) shall include particulars of:

   (a)  how many suspected offences against this Act were under investigation
        during the year;

   (b)  how many prosecutions for alleged offences against this Act were begun
        during the year;

   (c)  the resources available during the year for the purposes of
        investigating such suspected offences and carrying on such
        prosecutions; and

   (d)  the timetable for finalising:

        (i)    investigations of such suspected offences; and

        (ii)   such prosecutions. Persons accused of war crimes not to be
               extradited unless prima facie case established

"22. (1) Subject to Part II, an expression has the same meaning in this
section as in the Extradition Act 1988.

"(2) Subsection (3) applies where, in proceedings that are conducted in a
State or Territory under section 19 of the Extradition Act 1988 in relation to
a person, the magistrate is satisfied that there are substantial grounds for
believing that an extradition offence for which the extradition country
concerned seeks the person's surrender is constituted by conduct constituting
an offence against this Act.

"(3) For the purposes of the Extradition Act 1988, the person is not eligible
for surrender in relation to the extradition offence unless the magistrate is
satisfied that there has been established a prima facie case that the person
committed the offence against this Act, in other words, that there is evidence
that, if uncontroverted, would provide sufficient grounds:

   (a)  to put the person on trial in a court of that State or Territory for
        the last-mentioned offence; or

   (b)  for inquiry by such a court in relation to the last-mentioned offence.

"(4) For the purposes of subsection (3), subsection 13 (1) shall be
disregarded.

"(5) This section has effect despite any law or treaty.".