Criminal Code Amendment (War Crimes) Act 2016

No. 97, 2016

An Act to amend the Criminal Code Act 1995, and for related purposes

Contents

1 Short title 1

2 Commencement 1

3 Schedules 2

Schedule 1—Amendments relating to war crimes 3

Part 1—Members of organised armed groups 3

Criminal Code Act 1995 3

Part 2—Proportionality in non-international armed conflict 5

Criminal Code Act 1995 5

Part 3—Minor technical amendment 7

Criminal Code Act 1995 7

Part 4—Application of amendments 8

Criminal Code Amendment (War Crimes) Act 2016

No. 97, 2016

An Act to amend the Criminal Code Act 1995, and for related purposes

[Assented to 7 December 2016]

The Parliament of Australia enacts:
1 Short title

This Act is the Criminal Code Amendment (War Crimes) Act 2016.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 8 December 2016

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Amendments relating to war crimes

Criminal Code Act 1995

 1 Paragraphs 268.70(1)(b) and (c) of the Criminal Code

Repeal the paragraphs, substitute:

 b

the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 c

the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 2 At the end of section 268.70 of the Criminal Code

Add:

 3

(3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

 3 Paragraphs 268.71(1)(d) and (e) and (2)(d) and (e) of the Criminal Code

Repeal the paragraphs, substitute:

 d

the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 e

the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 4 At the end of section 268.71 of the Criminal Code

Add:

 4

(4) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

 5 Paragraphs 268.72(1)(b) and (c) of the Criminal Code

Repeal the paragraphs, substitute:

 b

the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 c

the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 6 At the end of section 268.72 of the Criminal Code

Add:

 3

(3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

 7 At the end of Subdivision K of Division 268 of Chapter 8 of the Criminal Code

Add:

 268.125 Meaning of civilian

In this Division, the expression civilian does not include a person who is a member of an organised armed group.

Criminal Code Act 1995

 8 After subsection 268.70(1) of the Criminal Code

Insert:

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

 1A

Subsection (1) does not apply if:

 a

the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 b

at the time the attack was launched:

 i

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 ii

it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

 9 After subsection 268.71(1) of the Criminal Code

Insert:

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

 1A

Subsection (1) does not apply if:

 a

the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 b

at the time the attack was launched:

 i

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 ii

it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

 10 After subsection 268.71(2) of the Criminal Code

Insert:

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3).

 2A

Subsection (2) does not apply if:

 a

the serious endangerment of the physical or mental health, or integrity, of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 b

at the time the attack was launched:

 i

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 ii

it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

 11 After subsection 268.72(1) of the Criminal Code

Insert:

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

Criminal Code Act 1995

 1A

Subsection (1) does not apply if:

 a

the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 b

at the time the attack was launched:

 i

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 ii

it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

 12 Paragraph 268.65(1)(a) of the Criminal Code

Omit “military,”.

 13 Application of amendments made by Part 1

The amendments made by Part 1 of this Schedule apply to conduct engaged in on or after the commencement of this item.

 14 Application of amendments made by Parts 2 and 3

The amendments made by Parts 2 and 3 of this Schedule apply to conduct engaged in before, on or after the commencement of this item.

[Minister’s second reading speech made in—

House of Representatives on 12 October 2016

Senate on 24 November 2016]

(142/16)