Contents
Schedule—The Criminal Code 1
Chapter 8—Offences against humanity and related offences 1
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court 1
Subdivision A—Introductory 1
268.1..................... Purpose of Division............................................................ 1
268.2..................... Outline of offences............................................................. 1
Subdivision B—Genocide 2
268.3..................... Genocide by killing............................................................. 2
268.4..................... Genocide by causing serious bodily or mental harm........... 2
268.5..................... Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction 2
268.6..................... Genocide by imposing measures intended to prevent births 3
268.7..................... Genocide by forcibly transferring children......................... 3
Subdivision C—Crimes against humanity 4
268.8..................... Crime against humanity—murder....................................... 4
268.9..................... Crime against humanity—extermination............................. 4
268.10................... Crime against humanity—enslavement............................... 5
268.11................... Crime against humanity—deportation or forcible transfer of population 5
268.12................... Crime against humanity—imprisonment or other severe deprivation of physical liberty 6
268.13................... Crime against humanity—torture........................................ 7
268.14................... Crime against humanity—rape............................................ 7
268.15................... Crime against humanity—sexual slavery............................ 9
268.16................... Crime against humanity—enforced prostitution.................. 9
268.17................... Crime against humanity—forced pregnancy..................... 11
268.18................... Crime against humanity—enforced sterilisation................ 11
268.19................... Crime against humanity—sexual violence........................ 12
268.20................... Crime against humanity—persecution.............................. 13
268.21................... Crime against humanity—enforced disappearance of persons 14
268.22................... Crime against humanity—apartheid.................................. 15
268.23................... Crime against humanity—other inhumane act................... 16
Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions 16
268.24................... War crime—wilful killing................................................. 16
268.25................... War crime—torture........................................................... 17
268.26................... War crime—inhumane treatment....................................... 17
268.27................... War crime—biological experiments.................................. 18
268.28................... War crime—wilfully causing great suffering.................... 18
268.29................... War crime—destruction and appropriation of property..... 19
268.30................... War crime—compelling service in hostile forces.............. 19
268.31................... War crime—denying a fair trial......................................... 20
268.32................... War crime—unlawful deportation or transfer................... 21
268.33................... War crime—unlawful confinement................................... 21
268.34................... War crime—taking hostages............................................. 22
Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict 22
268.35................... War crime—attacking civilians......................................... 22
268.36................... War crime—attacking civilian objects............................... 23
268.37................... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission.......................................................................................... 23
268.38................... War crime—excessive incidental death, injury or damage 24
268.39................... War crime—attacking undefended places......................... 25
268.40................... War crime—killing or injuring a person who is hors de combat 25
268.41................... War crime—improper use of a flag of truce...................... 26
268.42................... War crime—improper use of a flag, insignia or uniform of the adverse party 26
268.43................... War crime—improper use of a flag, insignia or uniform of the United Nations 27
268.44................... War crime—improper use of the distinctive emblems of the Geneva Conventions 27
268.45................... War crime—transfer of population................................... 28
268.46................... War crime—attacking protected objects............................ 28
268.47................... War crime—mutilation...................................................... 29
268.48................... War crime—medical or scientific experiments.................. 30
268.49................... War crime—treacherously killing or injuring.................... 31
268.50................... War crime—denying quarter............................................. 31
268.51................... War crime—destroying or seizing the enemy’s property.. 32
268.52................... War crime—depriving nationals of the adverse power of rights or actions 32
268.53................... War crime—compelling participation in military operations 33
268.54................... War crime—pillaging........................................................ 33
268.55................... War crime—employing poison or poisoned weapons...... 34
268.56................... War crime—employing prohibited gases, liquids, materials or devices 34
268.57................... War crime—employing prohibited bullets........................ 34
268.58................... War crime—outrages upon personal dignity..................... 35
268.59................... War crime—rape............................................................... 35
268.60................... War crime—sexual slavery............................................... 37
268.61................... War crime—enforced prostitution..................................... 37
268.62................... War crime—forced pregnancy.......................................... 39
268.63................... War crime—enforced sterilisation..................................... 39
268.64................... War crime—sexual violence............................................. 40
268.65................... War crime—using protected persons as shields................ 41
268.66................... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 42
268.67................... War crime—starvation as a method of warfare................. 42
268.68................... War crime—using, conscripting or enlisting children....... 43
Subdivision F—War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict 45
268.69................... Definition of religious personnel...................................... 45
268.70................... War crime—murder.......................................................... 45
268.71................... War crime—mutilation...................................................... 45
268.72................... War crime—cruel treatment.............................................. 47
268.73................... War crime—torture........................................................... 48
268.74................... War crime—outrages upon personal dignity..................... 48
268.75................... War crime—taking hostages............................................. 50
268.76................... War crime—sentencing or execution without due process 50
Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict 52
268.77................... War crime—attacking civilians......................................... 52
268.78................... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 53
268.79................... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission.......................................................................................... 54
268.80................... War crime—attacking protected objects............................ 55
268.81................... War crime—pillaging........................................................ 55
268.82................... War crime—rape............................................................... 55
268.83................... War crime—sexual slavery............................................... 57
268.84................... War crime—enforced prostitution..................................... 58
268.85................... War crime—forced pregnancy.......................................... 59
268.86................... War crime—enforced sterilisation..................................... 60
268.87................... War crime—sexual violence............................................. 60
268.88................... War crime—using, conscripting or enlisting children....... 61
268.89................... War crime—displacing civilians....................................... 63
268.90................... War crime—treacherously killing or injuring.................... 64
268.91................... War crime—denying quarter............................................. 64
268.92................... War crime—mutilation...................................................... 65
268.93................... War crime—medical or scientific experiments.................. 66
268.94................... War crime—destroying or seizing an adversary’s property 67
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions 68
268.95................... War crime—medical procedure......................................... 68
268.96................... War crime—removal of blood, tissue or organs for transplantation 68
268.97................... War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians.................................................... 69
268.98................... War crime—attacking undefended places or demilitarized zones 70
268.99................... War crime—unjustifiable delay in the repatriation of prisoners of war or civilians 70
268.100................. War crime—apartheid....................................................... 71
268.101................. War crime—attacking protected objects............................ 71
Subdivision J—Crimes against the administration of the justice of the International Criminal Court 72
268.102................. Perjury.............................................................................. 72
268.103................. Falsifying evidence........................................................... 72
268.104................. Destroying or concealing evidence................................... 73
268.105................. Deceiving witnesses......................................................... 73
268.106................. Corrupting witnesses or interpreters................................. 73
268.107................. Threatening witnesses or interpreters................................ 74
268.108................. Preventing witnesses or interpreters................................. 75
268.109................. Preventing production of things in evidence..................... 75
268.110................. Reprisals against witnesses............................................... 75
268.111................. Reprisals against officials of the International Criminal Court 76
268.112................. Perverting the course of justice......................................... 77
268.113................. Receipt of a corrupting benefit by an official of the International Criminal Court 77
268.114................. Subdivision not to apply to certain conduct...................... 78
Subdivision K—Miscellaneous 78
268.115................. Responsibility of commanders and other superiors.......... 78
268.116................. Defence of superior orders............................................... 79
268.117................. Geographical jurisdiction.................................................. 80
268.118................. Double jeopardy............................................................... 80
268.119................. Offences related to exercise of jurisdiction of International Criminal Court 80
268.120................. Saving of other laws......................................................... 80
268.121................. Bringing proceedings under this Division........................ 81
268.122................. Attorney‑General’s decisions in relation to consents to be final 81
268.123................. Legal representation.......................................................... 82
268.124................. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 82
Division 270—Slavery and slavery‑like conditions 83
Subdivision A—Preliminary 83
270.1A.................. Definitions for Division 270............................................. 83
Subdivision B—Slavery 84
270.1..................... Definition of slavery......................................................... 84
270.2..................... Slavery is unlawful........................................................... 84
270.3..................... Slavery offences............................................................... 84
Subdivision C—Slavery‑like conditions 86
270.4..................... Definition of servitude...................................................... 86
270.5..................... Servitude offences............................................................ 86
270.6..................... Definition of forced labour............................................... 87
270.6A.................. Forced labour offences..................................................... 88
270.7..................... Deceptive recruiting for labour or services....................... 89
270.7A.................. Definition of forced marriage.......................................... 90
270.7B................... Forced marriage offences.................................................. 90
270.8..................... Slavery‑like offences—aggravated offences..................... 91
270.9..................... Slavery‑like offences—jurisdictional requirement............ 92
270.10................... Slavery‑like offences—relevant evidence......................... 92
Subdivision D—Offences against Division 270: general 93
270.11................... Offences against Division 270—no defence of victim consent or acquiescence 93
270.12................... Offences against Division 270—other laws not excluded 93
270.13................... Offences against Division 270—double jeopardy............ 94
Division 271—Trafficking in persons and debt bondage 95
Subdivision A—Definitions 95
271.1..................... Definitions........................................................................ 95
271.1A.................. Definition of exploitation.................................................. 95
Subdivision B—Offences relating to trafficking in persons 96
271.2..................... Offence of trafficking in persons...................................... 96
271.3..................... Trafficking in persons—aggravated offence..................... 99
271.4..................... Offence of trafficking in children.................................... 100
271.5..................... Offence of domestic trafficking in persons..................... 101
271.6..................... Domestic trafficking in persons—aggravated offence.... 102
271.7..................... Offence of domestic trafficking in children..................... 103
Subdivision BA—Organ trafficking 104
271.7A.................. Removal of organs contrary to this Subdivision............. 104
271.7B................... Offence of organ trafficking—entry into and exit from Australia 104
271.7C................... Organ trafficking—aggravated offence........................... 105
271.7D.................. Offence of domestic organ trafficking............................ 106
271.7E................... Domestic organ trafficking—aggravated offence............ 106
Subdivision BB—Harbouring a victim 107
271.7F................... Harbouring a victim........................................................ 107
271.7G.................. Harbouring a victim—aggravated offence...................... 108
Subdivision C—Offences relating to debt bondage 109
271.8..................... Offence of debt bondage................................................. 109
271.9..................... Debt bondage—aggravated offence................................ 109
Subdivision D—Offences against Division 271: general 110
271.10................... Jurisdictional requirements—offences other than domestic trafficking in persons or organs 110
271.11................... Jurisdictional requirements—offences of domestic trafficking in persons or organs 110
271.11A................ Offences against Division 271—relevant evidence......... 111
271.11B................. Offences against Division 271—no defence of victim consent or acquiescence 112
271.12................... Offences against Division 271—other laws not excluded 112
271.13................... Double jeopardy............................................................. 113
Division 272—Child sex offences outside Australia 114
Subdivision A—Preliminary 114
272.1..................... Definitions...................................................................... 114
272.2..................... When conduct causes a person to engage in sexual intercourse or other sexual activity 114
272.3..................... Meaning of position of trust or authority....................... 114
272.4..................... Meaning of sexual intercourse....................................... 115
272.5..................... Meaning of offence against this Division and extension of criminal responsibility 116
272.6..................... Who can be prosecuted for an offence committed outside Australia 117
272.7..................... Saving of other laws....................................................... 117
Subdivision B—Sexual offences against children outside Australia 118
272.8..................... Sexual intercourse with child outside Australia.............. 118
272.9..................... Sexual activity (other than sexual intercourse) with child outside Australia 119
272.10................... Aggravated offence—child with mental impairment or under care, supervision or authority of defendant........................................................................................ 120
272.11................... Persistent sexual abuse of child outside Australia........... 121
272.12................... Sexual intercourse with young person outside Australia—defendant in position of trust or authority 124
272.13................... Sexual activity (other than sexual intercourse) with young person outside Australia—defendant in position of trust or authority............................................................. 125
272.14................... Procuring child to engage in sexual activity outside Australia 126
272.15................... “Grooming” child to engage in sexual activity outside Australia 127
272.16................... Defence based on belief about age.................................. 128
272.17................... Defence based on valid and genuine marriage................ 129
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia 130
272.18................... Benefiting from offence against this Division................. 130
272.19................... Encouraging offence against this Division...................... 131
272.20................... Preparing for or planning offence against this Division.. 131
Subdivision E—Other rules about conduct of trials 132
272.27................... Evidence relating to a person’s age................................. 132
272.28................... Alternative verdicts......................................................... 133
272.29................... Double jeopardy............................................................. 134
272.30................... Sentencing...................................................................... 134
272.31................... Consent to commencement of proceedings where defendant under 18 134
Division 273—Offences involving child pornography material or child abuse material outside Australia 136
Subdivision A—Preliminary 136
273.1..................... Definitions...................................................................... 136
273.2..................... Who can be prosecuted for an offence committed outside Australia 137
273.2A.................. Consent to commencement of proceedings where defendant under 18 137
273.3..................... Double jeopardy............................................................. 137
273.4..................... Saving of other laws....................................................... 137
Subdivision B—Offences committed overseas involving child pornography material or child abuse material 138
273.5..................... Possessing, controlling, producing, distributing or obtaining child pornography material outside Australia........................................................................................ 138
273.6..................... Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia 138
273.7..................... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 139
273.8..................... Alternative verdict if aggravated offence not proven....... 140
Subdivision C—Defences 140
273.9..................... Defences to offences against this Division..................... 140
Division 274—Torture 143
274.1..................... Definitions...................................................................... 143
274.2..................... Torture............................................................................ 143
274.3..................... Prosecutions................................................................... 144
274.4..................... No defence of exceptional circumstances or superior orders 145
274.5..................... Jurisdiction of State/Territory courts preserved.............. 145
274.6..................... Concurrent operation intended........................................ 146
274.7..................... Double jeopardy............................................................. 146
Division 279—Video link evidence 147
279.1..................... Proceedings to which this Division applies.................... 147
279.2..................... When court may take evidence by video link.................. 147
279.3..................... Technical requirements for video link............................. 147
279.4..................... Application of laws about witnesses............................... 148
279.5..................... Administration of oaths and affirmations........................ 148
279.6..................... Expenses......................................................................... 149
279.7..................... Other laws about foreign evidence not affected.............. 149
Chapter 9—Dangers to the community 150
Part 9.1—Serious drug offences 150
Division 300—Preliminary 150
300.1..................... Purpose........................................................................... 150
300.2..................... Definitions...................................................................... 150
300.3..................... Geographical jurisdiction................................................ 153
300.4..................... Concurrent operation intended........................................ 153
300.5..................... Particular identity of drugs, plants and precursors.......... 154
Division 301—Serious drugs and precursors 155
Subdivision A—Serious drugs and precursors: definitions 155
301.1..................... Meaning of controlled drug............................................ 155
301.2..................... Meaning of controlled plant........................................... 155
301.3..................... Meaning of controlled precursor................................... 156
301.4..................... Meaning of border controlled drug................................ 156
301.5..................... Meaning of border controlled plant............................... 157
301.6..................... Meaning of border controlled precursor....................... 157
301.7..................... Serious drugs—conditions for listing by regulation....... 158
301.8..................... Serious drug precursors—conditions for listing by regulation 158
301.9..................... Meaning of drug analogue............................................. 158
Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities 160
301.10................... Meaning of commercial quantity.................................... 160
301.11................... Meaning of marketable quantity..................................... 161
301.12................... Meaning of trafficable quantity....................................... 162
Subdivision C—Serious drugs and precursors: emergency determinations 162
301.13................... Emergency determinations—serious drugs..................... 162
301.14................... Emergency determinations—serious drug precursors..... 163
301.15................... Emergency determinations—commercial, marketable and trafficable quantities 163
301.16................... Emergency determinations—effectiveness...................... 164
301.17................... Emergency determinations—publication......................... 165
Division 302—Trafficking controlled drugs 166
302.1..................... Meaning of traffics......................................................... 166
302.2..................... Trafficking commercial quantities of controlled drugs.... 166
302.3..................... Trafficking marketable quantities of controlled drugs..... 167
302.4..................... Trafficking controlled drugs........................................... 167
302.5..................... Presumption where trafficable quantities are involved.... 167
302.6..................... Purchase of controlled drugs is not an ancillary offence. 168
Division 303—Commercial cultivation of controlled plants 169
303.1..................... Meanings of cultivate and cultivates a plant................... 169
303.2..................... Meaning of product of a plant........................................ 169
303.3..................... Meaning of cultivates a plant for a commercial purpose 169
303.4..................... Cultivating commercial quantities of controlled plants.... 170
303.5..................... Cultivating marketable quantities of controlled plants..... 170
303.6..................... Cultivating controlled plants........................................... 170
303.7..................... Presumption where trafficable quantities are involved.... 171
Division 304—Selling controlled plants 172
304.1..................... Selling commercial quantities of controlled plants.......... 172
304.2..................... Selling marketable quantities of controlled plants........... 172
304.3..................... Selling controlled plants.................................................. 172
Division 305—Commercial manufacture of controlled drugs 174
305.1..................... Meanings of manufacture and manufactures a substance 174
305.2..................... Meaning of manufactures a substance for a commercial purpose 174
305.3..................... Manufacturing commercial quantities of controlled drugs 174
305.4..................... Manufacturing marketable quantities of controlled drugs 175
305.5..................... Manufacturing controlled drugs...................................... 175
305.6..................... Presumption where trafficable quantities are involved.... 176
Division 306—Pre‑trafficking controlled precursors 177
306.1..................... Meaning of pre‑traffics................................................... 177
306.2..................... Pre‑trafficking commercial quantities of controlled precursors 177
306.3..................... Pre‑trafficking marketable quantities of controlled precursors 178
306.4..................... Pre‑trafficking controlled precursors.............................. 178
306.5..................... Presumption for pre‑trafficking controlled precursors—sale 179
306.6..................... Presumptions for pre‑trafficking controlled precursors—manufacture for drug manufacture 179
306.7..................... Presumptions for pre‑trafficking controlled precursors—manufacture for sale 180
306.8..................... Presumptions for pre‑trafficking controlled precursors—possession 181
Division 307—Import‑export offences 183
Subdivision A—Importing and exporting border controlled drugs or border controlled plants 183
307.1..................... Importing and exporting commercial quantities of border controlled drugs or border controlled plants 183
307.2..................... Importing and exporting marketable quantities of border controlled drugs or border controlled plants 183
307.3..................... Importing and exporting border controlled drugs or border controlled plants 184
307.4..................... Importing and exporting border controlled drugs or border controlled plants—no defence relating to lack of commercial intent............................................................ 184
Subdivision B—Possessing unlawfully imported border controlled drugs or border controlled plants 185
307.5..................... Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants........................................................................................ 185
307.6..................... Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants........................................................................................ 185
307.7..................... Possessing unlawfully imported border controlled drugs or border controlled plants 186
Subdivision C—Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported 187
307.8..................... Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................... 187
307.9..................... Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................... 187
307.10................... Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported........................................................ 188
Subdivision D—Importing and exporting border controlled precursors 189
307.11................... Importing and exporting commercial quantities of border controlled precursors 189
307.12................... Importing and exporting marketable quantities of border controlled precursors 189
307.13................... Importing and exporting border controlled precursors.... 190
307.14................... Presumptions for importing and exporting border controlled precursors 191
Division 308—Possession offences 193
308.1..................... Possessing controlled drugs........................................... 193
308.2..................... Possessing controlled precursors.................................... 194
308.3..................... Possessing plant material, equipment or instructions for commercial cultivation of controlled plants 194
308.4..................... Possessing substance, equipment or instructions for commercial manufacture of controlled drugs 195
Division 309—Drug offences involving children 196
309.1..................... Children not criminally responsible for offences against this Division 196
309.2..................... Supplying controlled drugs to children........................... 196
309.3..................... Supplying marketable quantities of controlled drugs to children for trafficking 196
309.4..................... Supplying controlled drugs to children for trafficking.... 197
309.5..................... Presumption where trafficable quantities are involved.... 197
309.6..................... Meaning of procures an individual to traffic.................. 197
309.7..................... Procuring children for trafficking marketable quantities of controlled drugs 198
309.8..................... Procuring children for trafficking controlled drugs......... 198
309.9..................... Meaning of procures an individual to pre‑traffic........... 199
309.10................... Procuring children for pre‑trafficking marketable quantities of controlled precursors 199
309.11................... Procuring children for pre‑trafficking controlled precursors 199
309.12................... Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants.............................................................. 200
309.13................... Procuring children for importing or exporting border controlled drugs or border controlled plants 201
309.14................... Procuring children for importing or exporting marketable quantities of border controlled precursors 201
309.15................... Procuring children for importing or exporting border controlled precursors 202
Division 310—Harm and danger to children under 14 from serious drug offences 204
310.1..................... Children not criminally responsible for offences against this Division 204
310.2..................... Danger from exposure to unlawful manufacturing......... 204
310.3..................... Harm from exposure to unlawful manufacturing............ 205
310.4..................... Aggravated offences—manufacturing controlled drugs and controlled precursors 206
Division 311—Combining quantities of drugs, plants or precursors 208
Subdivision A—Combining different parcels on the same occasion 208
311.1..................... Combining different parcels on the same occasion......... 208
Subdivision B—Combining parcels from organised commercial activities 209
311.2..................... Business of trafficking controlled drugs......................... 209
311.3..................... Business of pre‑trafficking by selling controlled precursors 210
311.4..................... Business of importing or exporting border controlled drugs or border controlled plants 211
311.5..................... Business of importing or exporting border controlled precursors 211
311.6..................... Business of supplying controlled drugs to children........ 212
311.7..................... General rules—combining parcels from organised commercial activities 213
Subdivision C—Combining parcels from multiple offences 214
311.8..................... Multiple offences—trafficking controlled drugs............. 214
311.9..................... Multiple offences—cultivating controlled plants............. 214
311.10................... Multiple offences—selling controlled plants................... 215
311.11................... Multiple offences—manufacturing controlled drugs....... 215
311.12................... Multiple offences—pre‑trafficking controlled precursors 215
311.13................... Multiple offences—importing or exporting border controlled drugs or border controlled plants 216
311.14................... Multiple offences—possessing unlawfully imported border controlled drugs or border controlled plants........................................................................................ 216
311.15................... Multiple offences—possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported.................................... 217
311.16................... Multiple offences—importing or exporting border controlled precursors 217
311.17................... Multiple offences—supplying controlled drugs to children for trafficking 218
311.18................... Multiple offences—procuring children for trafficking controlled drugs 218
311.19................... Multiple offences—procuring children for pre‑trafficking controlled precursors 219
311.20................... Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants.............................................................................. 219
311.21................... Multiple offences—procuring children for importing or exporting border controlled precursors 220
311.22................... General rules—combining parcels from multiple offences 221
Division 312—Working out quantities of drugs, plants or precursors 222
312.1..................... Working out quantities of drugs and precursors in mixtures 222
312.2..................... Working out quantities where different kinds of drugs, plants or precursors are involved 223
Division 313—Defences and alternative verdicts 226
313.1..................... Defence—conduct justified or excused by or under a law of a State or Territory 226
313.2..................... Defence—reasonable belief that conduct is justified or excused by or under a law 226
313.3..................... Alternative verdict—offence not proved......................... 226
313.4..................... Alternative verdict—mistake as to quantity of drug, plant or precursor 227
313.5..................... Alternative verdict—mistake as to identity of drug, plant or precursor 228
Part 9.4—Dangerous weapons 229
Division 360—Cross‑border firearms trafficking 229
360.1..................... Disposal and acquisition of a firearm.............................. 229
360.2..................... Cross‑border offence of disposal or acquisition of a firearm 229
360.3..................... Taking or sending a firearm across borders.................... 230
360.4..................... Concurrent operation intended........................................ 231
Part 9.5—Identity crime 232
Division 370—Preliminary 232
370.1..................... Definitions...................................................................... 232
370.2..................... Definition of foreign indictable offence........................... 233
370.3..................... Concurrent operation intended........................................ 233
Division 372—Identity fraud offences 234
372.1..................... Dealing in identification information............................... 234
372.1A.................. Dealing in identification information that involves use of a carriage service 235
372.2..................... Possession of identification information......................... 237
372.3..................... Possession of equipment used to make identification documentation 237
372.4..................... Extended geographical jurisdiction—category A............ 238
372.5..................... Alternative verdict........................................................... 238
372.6..................... Attempt........................................................................... 238
Division 375—Victims’ certificates 239
375.1..................... Certificate may be issued by magistrate in relation to victim of identity crime 239
375.2..................... Content of certificate....................................................... 240
375.3..................... Relation to civil and criminal proceedings....................... 240
375.4..................... Power conferred on magistrate personally...................... 240
Division 376—False identity and air travel 241
376.1..................... Definitions for Division 376........................................... 241
376.2..................... False identification information—at constitutional airports 241
376.3..................... False identification information—air passenger tickets obtained using a carriage service 242
376.4..................... False identification information—air passenger tickets for constitutional flights 243
376.5..................... False identification information—extended jurisdiction (Category D) 244
Part 9.6—Contamination of goods 245
380.1..................... Definitions...................................................................... 245
380.2..................... Contaminating goods...................................................... 245
380.3..................... Threatening to contaminate goods................................... 247
380.4..................... Making false statements about contamination of goods.. 249
380.5..................... Extended geographical jurisdiction—category D............ 251
Part 9.9—Criminal associations and organisations 252
Division 390—Criminal associations and organisations 252
Subdivision A—Definitions 252
390.1..................... Definitions...................................................................... 252
390.2..................... State offences that have a federal aspect.......................... 254
Subdivision B—Offences 257
390.3..................... Associating in support of serious organised criminal activity 257
390.4..................... Supporting a criminal organisation................................. 259
390.5..................... Committing an offence for the benefit of, or at the direction of, a criminal organisation 260
390.6..................... Directing activities of a criminal organisation................. 262
390.7..................... Extended geographical jurisdiction—category C............ 264
Chapter 10—National infrastructure 265
Part 10.2—Money laundering 265
Division 400—Money laundering 265
400.1..................... Definitions...................................................................... 265
400.2..................... Definition of deals with money or other property.......... 267
400.2A.................. Application of offences relating to possible instruments of crime 267
400.3..................... Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more 268
400.4..................... Dealing in proceeds of crime etc.—money or property worth $100,000 or more 270
400.5..................... Dealing in proceeds of crime etc.—money or property worth $50,000 or more 271
400.6..................... Dealing in proceeds of crime etc.—money or property worth $10,000 or more 272
400.7..................... Dealing in proceeds of crime etc.—money or property worth $1,000 or more 274
400.8..................... Dealing in proceeds of crime etc.—money or property of any value 275
400.9..................... Dealing with property reasonably suspected of being proceeds of crime etc. 276
400.10................... Mistake of fact as to the value of money or property...... 278
400.11................... Proof of certain matters relating to kinds of offences not required 279
400.12................... Combining several contraventions in a single charge...... 280
400.13................... Proof of other offences is not required........................... 280
400.14................... Alternative verdicts......................................................... 280
400.15................... Geographical jurisdiction................................................ 281
400.16................... Saving of other laws....................................................... 284
Part 10.5—Postal services 285
Division 470—Preliminary 285
470.1..................... Definitions...................................................................... 285
470.2..................... Dishonesty...................................................................... 287
470.3..................... Determination of dishonesty to be a matter for the trier of fact 287
470.4..................... Meaning of expressions used in Subdivisions B and C of Division 471 287
Division 471—Postal offences 289
Subdivision A—General postal offences 289
471.1..................... Theft of mail‑receptacles, articles or postal messages..... 289
471.2..................... Receiving stolen mail‑receptacles, articles or postal messages 290
471.3..................... Taking or concealing of mail‑receptacles, articles or postal messages 292
471.4..................... Dishonest removal of postage stamps or postmarks....... 292
471.5..................... Dishonest use of previously used, defaced or obliterated stamps 292
471.6..................... Damaging or destroying mail‑receptacles, articles or postal messages 293
471.7..................... Tampering with mail‑receptacles..................................... 294
471.8..................... Dishonestly obtaining delivery of articles....................... 294
471.9..................... Geographical jurisdiction................................................ 294
471.10................... Hoaxes—explosives and dangerous substances............. 294
471.11................... Using a postal or similar service to make a threat........... 295
471.12................... Using a postal or similar service to menace, harass or cause offence 296
471.13................... Causing a dangerous article to be carried by a postal or similar service 296
471.14................... Geographical jurisdiction................................................ 297
471.15................... Causing an explosive, or a dangerous or harmful substance, to be carried by post 297
Subdivision B—Offences relating to use of postal or similar service for child pornography material or child abuse material 298
471.16................... Using a postal or similar service for child pornography material 298
471.17................... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service.................................................. 299
471.18................... Defences in respect of child pornography material......... 299
471.19................... Using a postal or similar service for child abuse material 300
471.20................... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service................................................................. 301
471.21................... Defences in respect of child abuse material..................... 301
471.22................... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 302
471.23................... Alternative verdict if aggravated offence not proven....... 304
Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16 304
471.24................... Using a postal or similar service to procure persons under 16 304
471.25................... Using a postal or similar service to “groom” persons under 16 305
471.26................... Using a postal or similar service to send indecent material to person under 16 306
471.27................... Age‑related provisions relating to offences against this Subdivision 307
471.28................... Other provisions relating to offences against this Subdivision 308
471.29................... Defences to offences against this Subdivision................ 309
Subdivision D—Miscellaneous 310
471.30................... Geographical jurisdiction................................................ 310
471.31................... Definition of carry by post does not apply..................... 310
Division 472—Miscellaneous 311
472.1..................... Saving of other laws....................................................... 311
472.2..................... Interpretation of other laws............................................. 311
Part 10.6—Telecommunications Services 312
Division 473—Preliminary 312
473.1..................... Definitions...................................................................... 312
473.2..................... Possession or control of data or material in the form of data 319
473.3..................... Producing, supplying or obtaining data or material in the form of data 320
473.4..................... Determining whether material is offensive...................... 320
473.5..................... Use of a carriage service................................................. 320
Division 474—Telecommunications offences 322
Subdivision A—Dishonesty with respect to carriage services 322
474.1..................... Dishonesty...................................................................... 322
474.2..................... General dishonesty with respect to a carriage service provider 322
Subdivision B—Interference with telecommunications 323
474.3..................... Person acting for a carrier or carriage service provider... 323
474.4..................... Interception devices........................................................ 323
474.5..................... Wrongful delivery of communications............................ 324
474.6..................... Interference with facilities............................................... 325
474.7..................... Modification etc. of a telecommunications device identifier 326
474.8..................... Possession or control of data or a device with intent to modify a telecommunications device identifier 327
474.9..................... Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier.......................................................................... 328
474.10................... Copying subscription‑specific secure data...................... 330
474.11................... Possession or control of data or a device with intent to copy an account identifier 331
474.12................... Producing, supplying or obtaining data or a device with intent to copy an account identifier 332
Subdivision C—General offences relating to use of telecommunications 334
474.14................... Using a telecommunications network with intention to commit a serious offence 334
474.15................... Using a carriage service to make a threat........................ 335
474.16................... Using a carriage service for a hoax threat....................... 336
474.17................... Using a carriage service to menace, harass or cause offence 336
474.18................... Improper use of emergency call service.......................... 337
Subdivision D—Offences relating to use of carriage service for child pornography material or child abuse material 337
474.19................... Using a carriage service for child pornography material. 337
474.20................... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service............................................................... 338
474.21................... Defences in respect of child pornography material......... 339
474.22................... Using a carriage service for child abuse material............ 340
474.23................... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service............................................................................. 341
474.24................... Defences in respect of child abuse material..................... 342
474.24A................ Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 344
474.24B................. Alternative verdict if aggravated offence not proven....... 345
474.24C................. Consent to commencement of proceedings where defendant under 18 345
Subdivision E—Offence relating to obligations of internet service providers and internet content hosts 346
474.25................... Obligations of internet service providers and internet content hosts 346
Subdivision F—Offences relating to use of carriage service involving sexual activity with person under 16 346
474.25A................ Using a carriage service for sexual activity with person under 16 years of age 346
474.25B................. Aggravated offence—child with mental impairment or under care, supervision or authority of defendant........................................................................................ 347
474.26................... Using a carriage service to procure persons under 16 years of age 348
474.27................... Using a carriage service to “groom” persons under 16 years of age 349
474.27A................ Using a carriage service to transmit indecent communication to person under 16 years of age 351
474.28................... Provisions relating to offences against this Subdivision. 351
474.29................... Defences to offences against this Subdivision................ 354
Subdivision G—Offences relating to use of carriage service for suicide related material 355
474.29A................ Using a carriage service for suicide related material........ 355
474.29B................. Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service............................................................................. 357
Division 475—Miscellaneous 359
475.1A.................. Defences for NRS employees and emergency call persons 359
475.1B................... Provisions relating to element of offence that particular conduct was engaged in using a carriage service........................................................................................ 359
475.1..................... Saving of other laws....................................................... 360
475.2..................... Geographical jurisdiction................................................ 360
Part 10.7—Computer offences 361
Division 476—Preliminary 361
476.1..................... Definitions...................................................................... 361
476.2..................... Meaning of unauthorised access, modification or impairment 362
476.3..................... Geographical jurisdiction................................................ 363
476.4..................... Saving of other laws....................................................... 363
476.5..................... Liability for certain acts................................................... 363
Division 477—Serious computer offences 366
477.1..................... Unauthorised access, modification or impairment with intent to commit a serious offence 366
477.2..................... Unauthorised modification of data to cause impairment.. 367
477.3..................... Unauthorised impairment of electronic communication.. 367
Division 478—Other computer offences 369
478.1..................... Unauthorised access to, or modification of, restricted data 369
478.2..................... Unauthorised impairment of data held on a computer disk etc. 369
478.3..................... Possession or control of data with intent to commit a computer offence 369
478.4..................... Producing, supplying or obtaining data with intent to commit a computer offence 370
Part 10.8—Financial information offences 372
480.1..................... Definitions...................................................................... 372
480.2..................... Dishonesty...................................................................... 373
480.3..................... Constitutional application of this Part............................. 373
480.4..................... Dishonestly obtaining or dealing in personal financial information 373
480.5..................... Possession or control of thing with intent to dishonestly obtain or deal in personal financial information........................................................................................ 373
480.6..................... Importation of thing with intent to dishonestly obtain or deal in personal financial information 374
Dictionary 375
Endnotes 390
Endnote 1—About the endnotes 390
Endnote 2—Abbreviation key 391
Endnote 3—Legislation history 392
Endnote 4—Amendment history 405
Schedule—The Criminal Code
Chapter 8—Offences against humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
Subdivision A—Introductory
268.1 Purpose of Division
(1) The purpose of this Division is to create certain offences that are of international concern and certain related offences.
(2) It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.
(3) Accordingly, the International Criminal Court Act 2002 does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences created by this Division that are also crimes within the jurisdiction of the International Criminal Court.
268.2 Outline of offences
(1) Subdivision B creates offences each of which is called genocide.
(2) Subdivision C creates offences each of which is called a crime against humanity.
(3) Subdivisions D, E, F, G and H create offences each of which is called a war crime.
(4) Subdivision J creates offences each of which is called a crime against the administration of the justice of the International Criminal Court.
Subdivision B—Genocide
268.3 Genocide by killing
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
Penalty: Imprisonment for life.
268.4 Genocide by causing serious bodily or mental harm
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes serious bodily or mental harm to one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes serious bodily or mental harm includes, but is not restricted to, commits acts of torture, rape, sexual violence or inhuman or degrading treatment.
268.5 Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts certain conditions of life upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.
Penalty: Imprisonment for life.
(2) In subsection (1):
conditions of life includes, but is not restricted to, intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.
268.6 Genocide by imposing measures intended to prevent births
A person (the perpetrator) commits an offence if:
(a) the perpetrator imposes certain measures upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the measures imposed are intended to prevent births within that group.
Penalty: Imprisonment for life.
268.7 Genocide by forcibly transferring children
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical, racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.
Penalty: Imprisonment for life.
(2) In subsection (1):
forcibly transfers one or more persons includes transfers one or more persons:
(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
Subdivision C—Crimes against humanity
268.8 Crime against humanity—murder
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for life.
268.9 Crime against humanity—extermination
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct constitutes, or takes place as part of, a mass killing of members of a civilian population; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes the death of includes causes death by intentionally inflicting conditions of life (such as the deprivation of access to food or medicine) intended to bring about the destruction of part of a population.
268.10 Crime against humanity—enslavement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons (including the exercise of a power in the course of trafficking in persons, in particular women and children); and
(b) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
exercises any or all of the powers attaching to the right of ownership over a person includes purchases, sells, lends or barters a person or imposes on a person a similar deprivation of liberty and also includes exercise a power arising from a debt incurred or contract made by a person.
268.11 Crime against humanity—deportation or forcible transfer of population
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country or location; and
(b) the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
forcibly displaces one or more persons includes displaces one or more persons:
(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
268.12 Crime against humanity—imprisonment or other severe deprivation of physical liberty
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and
(b) the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.13 Crime against humanity—torture
A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; and
(b) the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
268.14 Crime against humanity—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.15 Crime against humanity—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.16 Crime against humanity—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person or persons are consenting to engaging in the act or acts of a sexual nature.
268.17 Crime against humanity—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.18 Crime against humanity—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.19 Crime against humanity—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.14 to 268.18; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.20 Crime against humanity—persecution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely deprives one or more persons of any of the rights referred to in paragraph (b); and
(b) the rights are those guaranteed in articles 6, 7, 8 and 9, paragraph 2 of article 14, article 18, paragraph 2 of article 20, paragraph 2 of article 23 and article 27 of the Covenant; and
(c) the perpetrator targets the person or persons by reason of the identity of a group or collectivity or targets the group or collectivity as such; and
(d) the grounds on which the targeting is based are political, racial, national, ethnic, cultural, religious, gender or other grounds that are recognised in paragraph 1 of article 2 of the Covenant; and
(e) the perpetrator’s conduct is committed in connection with another act that is:
(i) a proscribed inhumane act; or
(ii) genocide; or
(iii) a war crime; and
(f) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in paragraph (1)(a) that the rights are those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (d).
268.21 Crime against humanity—enforced disappearance of persons
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator arrests, detains or abducts one or more persons; and
(b) the arrest, detention or abduction is carried out by, or with the authorisation, support or acquiescence of, the government of a country or a political organisation; and
(c) the perpetrator intends to remove the person or persons from the protection of the law for a prolonged period of time; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population; and
(e) after the arrest, detention or abduction, the government or organisation refuses to acknowledge the deprivation of freedom of, or to give information on the fate or whereabouts of, the person or persons.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) one or more persons have been arrested, detained or abducted; and
(b) the arrest, detention or abduction was carried out by, or with the authorisation, support or acquiescence of, the government of a country or a political organisation; and
(c) the perpetrator refuses to acknowledge the deprivation of freedom, or to give information on the fate or whereabouts, of the person or persons; and
(d) the refusal occurs with the authorisation, support or acquiescence of the government of the country or the political organisation; and
(e) the perpetrator knows that, or is reckless as to whether, the refusal was preceded or accompanied by the deprivation of freedom; and
(f) the perpetrator intends that the person or persons be removed from the protection of the law for a prolonged period of time; and
(g) the arrest, detention or abduction occurred, and the refusal occurs, as part of a widespread or systematic attack directed against a civilian population; and
(h) the perpetrator knows that the refusal is part of, or intends the refusal to be part of, such an attack.
Penalty: Imprisonment for 17 years.
268.22 Crime against humanity—apartheid
A person (the perpetrator) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a proscribed inhumane act (as defined by the Dictionary) or an act that is of a nature and gravity similar to any such proscribed inhumane act; and
(b) the perpetrator’s conduct is committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish the character of the act; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
268.23 Crime against humanity—other inhumane act
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act; and
(b) the act is of a character similar to another proscribed inhumane act as defined by the Dictionary; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions
268.24 War crime—wilful killing
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
268.25 War crime—torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(c).
268.26 War crime—inhumane treatment
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.27 War crime—biological experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a particular biological experiment; and
(b) the experiment seriously endangers the physical or mental health or integrity of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(d).
268.28 War crime—wilfully causing great suffering
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.29 War crime—destruction and appropriation of property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or appropriates property; and
(b) the destruction or appropriation is not justified by military necessity; and
(c) the destruction or appropriation is extensive and carried out unlawfully and wantonly; and
(d) the property is protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(d).
268.30 War crime—compelling service in hostile forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator coerces one or more persons, by act or threat:
(i) to take part in military operations against that person’s or those persons’ own country or forces; or
(ii) otherwise to serve in the forces of an adverse power; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(b).
268.31 War crime—denying a fair trial
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of a fair and regular trial by denying to the person any of the judicial guarantees referred to in paragraph (b); and
(b) the judicial guarantees are those defined in articles 84, 99 and 105 of the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva Convention; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in paragraph (1)(a) that the judicial guarantees are those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (c).
268.32 War crime—unlawful deportation or transfer
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully deports or transfers one or more persons to another country or to another location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.33 War crime—unlawful confinement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines or continues to confine one or more persons to a certain location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.34 War crime—taking hostages
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel the government of a country, an international organisation or a person or group of persons to act or refrain from acting as an explicit or implicit condition for either the safety or the release of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(d).
Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict
268.35 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.36 War crime—attacking civilian objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is not a military objective; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.37 War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the protection given to civilians under the Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the protection given to civilian objects under the Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
268.38 War crime—excessive incidental death, injury or damage
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(i) damage to civilian objects; or
(ii) widespread, long‑term and severe damage to the natural environment; and
(c) the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 20 years.
268.39 War crime—attacking undefended places
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks or bombards one or more towns, villages, dwellings or buildings; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the towns, villages, dwellings or buildings do not constitute military objectives; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.40 War crime—killing or injuring a person who is hors de combat
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator kills one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator injures one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.41 War crime—improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.42 War crime—improper use of a flag, insignia or uniform of the adverse party
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the adverse party; and
(b) the perpetrator uses the flag, insignia or uniform while engaged in an attack or in order to shield, favour, protect or impede military operations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag, insignia or uniform; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.43 War crime—improper use of a flag, insignia or uniform of the United Nations
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the United Nations; and
(b) the perpetrator uses the flag, insignia or uniform without the authority of the United Nations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag, insignia or uniform; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.44 War crime—improper use of the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses an emblem; and
(b) the emblem is one of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator uses the emblem for combatant purposes to invite the confidence of an adversary in order to lead him or her to believe that the perpetrator is entitled to protection, or that the adversary is obliged to accord protection to the perpetrator, with intent to betray that confidence; and
(d) the perpetrator knows of, or is reckless as to, the illegal nature of such use; and
(e) the perpetrator’s conduct results in death or serious personal injury; and
(f) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
(3) In this section:
emblem means any emblem, identity card, sign, signal, insignia or uniform.
268.45 War crime—transfer of population
A person (the perpetrator) commits an offence if:
(a) the perpetrator:
(i) authorises, organises or directs, or participates in the authorisation, organisation or direction of, or participates in, the transfer, directly or indirectly, of parts of the civilian population of the perpetrator’s own country into territory that the country occupies; or
(ii) authorises, organises or directs, or participates in the authorisation, organisation or direction of, or participates in, the deportation or transfer of all or parts of the population of territory occupied by the perpetrator’s own country within or outside that territory; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.46 War crime—attacking protected objects
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not military objectives:
(i) buildings dedicated to religion, education, art, science or charitable purposes;
(ii) historic monuments;
(iii) hospitals or places where the sick and wounded are collected; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(2) The definitions of charitable purpose in subsection 12(1) of the Charities Act 2013 and section 2B of the Acts Interpretation Act 1901 do not apply to this section.
268.47 War crime—mutilation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes the death of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.48 War crime—medical or scientific experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.49 War crime—treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.50 War crime—denying quarter
A person (the perpetrator) commits an offence if:
(a) the perpetrator declares or orders that there are to be no survivors; and
(b) the declaration or order is given with the intention of threatening an adversary or conducting hostilities on the basis that there are to be no survivors; and
(c) the perpetrator is in a position of effective command or control over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.51 War crime—destroying or seizing the enemy’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adverse party; and
(c) the property is protected from the destruction or seizure under article 18 of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or article 54 of Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).
268.52 War crime—depriving nationals of the adverse power of rights or actions
A person (the perpetrator) commits an offence if:
(a) the perpetrator effects the abolition, suspension or termination of admissibility in a court of law of certain rights or actions; and
(b) the abolition, suspension or termination is directed at the nationals of an adverse party; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
268.53 War crime—compelling participation in military operations
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator coerces one or more persons by act or threat to take part in military operations against that person’s or those persons’ own country or forces; and
(b) the person or persons are nationals of an adverse party; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) It is not a defence to a prosecution for an offence against subsection (1) that the person or persons were in the service of the perpetrator at a time before the beginning of the international armed conflict.
268.54 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property and to appropriate it for private or personal use; and
(c) the appropriation is without the consent of the owner; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.55 War crime—employing poison or poisoned weapons
A person (the perpetrator) commits an offence if:
(a) the perpetrator employs a substance or employs a weapon that releases a substance as a result of its employment; and
(b) the substance is such that it causes death or serious damage to health in the ordinary course of events through its toxic properties; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.56 War crime—employing prohibited gases, liquids, materials or devices
A person (the perpetrator) commits an offence if:
(a) the perpetrator employs a gas or other analogous substance or device; and
(b) the gas, substance or device is such that it causes death or serious damage to health in the ordinary course of events through its asphyxiating or toxic properties; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.57 War crime—employing prohibited bullets
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator employs certain bullets; and
(b) the bullets are such that their use violates the Hague Declaration because they expand or flatten easily in the human body; and
(c) the perpetrator knows that, or is reckless as to whether, the nature of the bullets is such that their employment will uselessly aggravate suffering or the wounding effect; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.58 War crime—outrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.59 War crime—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows about, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows about, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.60 War crime—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.61 War crime—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.62 War crime—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was effected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.63 War crime—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.64 War crime—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.59 to 268.63; and
(c) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.65 War crime—using protected persons as shields
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses the presence of one or more civilians, prisoners of war, military, medical or religious personnel or persons who are hors de combat; and
(b) the perpetrator intends the perpetrator’s conduct to render a military objective immune from attack or to shield, favour or impede military operations; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty:
(a) if the conduct results in the death of any of the persons referred to in paragraph (a)—imprisonment for life; or
(b) otherwise—imprisonment for 17 years.
(2) In this section:
religious personnel includes non‑confessional, non‑combatant military personnel carrying out a similar function to religious personnel.
268.66 War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or transports or other objects; and
(b) the buildings, units or transports or other objects are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other objects so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
268.67 War crime—starvation as a method of warfare
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses as a method of warfare:
(i) any intentional deprivation of civilians of objects indispensable to their survival; or
(ii) without limiting subparagraph (i)—the wilful impeding of relief supplies for civilians; and
(b) if subparagraph (a)(ii) applies—the relief supplies are provided for under the Geneva Conventions; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.68 War crime—using, conscripting or enlisting children
National armed forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities as members of the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
Other armed forces and groups
(4) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities other than as members of the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
Subdivision F—War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict
268.69 Definition of religious personnel
In this Subdivision:
religious personnel includes non‑confessional, non‑combatant military personnel carrying out a similar function to religious personnel.
268.70 War crime—murder
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.71 War crime—mutilation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes the death of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(f) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(f) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.72 War crime—cruel treatment
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.73 War crime—torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.74 War crime—outrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and
(b) the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(3) To avoid doubt, a reference in this section to a person or persons who are not, or a dead person or dead persons who were not before his, her or their death, taking an active part in the hostilities includes a reference to:
(a) a person or persons who:
(i) are hors de combat; or
(ii) are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or
(b) a dead person or dead persons who, before his, her or their death:
(i) were hors de combat; or
(ii) were civilians, medical personnel or religious personnel who were not taking an active part in the hostilities;
as the case may be.
268.75 War crime—taking hostages
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel the government of a country, an international organisation or a person or group of persons to act or refrain from acting as an explicit or implicit condition for either the safety or the release of the person or persons; and
(d) the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.76 War crime—sentencing or execution without due process
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator passes a sentence on one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator executes one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(e) and (2)(e).
(4) To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict
268.77 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.78 War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or transports or other objects; and
(b) the buildings, units or transports or other objects are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other objects so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
268.79 War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the protection given to civilians under the Geneva Conventions or Protocol II to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the protection given to civilian objects under the Geneva Conventions and Protocol II to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
268.80 War crime—attacking protected objects
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not military objectives:
(i) buildings dedicated to religion, education, art, science or charitable purposes;
(ii) historic monuments;
(iii) hospitals or places where the sick and wounded are collected; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
(2) The definitions of charitable purpose in subsection 12(1) of the Charities Act 2013 and section 2B of the Acts Interpretation Act 1901 do not apply to this section.
268.81 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property and to appropriate it for private or personal use; and
(c) the appropriation is without the consent of the owner; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
268.82 War crime—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.83 War crime—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.84 War crime—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.85 War crime—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group as such; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.86 War crime—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.87 War crime—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.82 to 268.87; and
(c) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the person or another person; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.88 War crime—using, conscripting or enlisting children
National armed forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities as members of the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
Other armed forces and groups
(4) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities other than as members of the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
268.89 War crime—displacing civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator orders a displacement of a civilian population; and
(b) the order is not justified by the security of the civilians involved or by imperative military necessity; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
268.90 War crime—treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.91 War crime—denying quarter
A person (the perpetrator) commits an offence if:
(a) the perpetrator declares or orders that there are to be no survivors; and
(b) the declaration or order is given with the intention of threatening an adversary or conducting hostilities on the basis that there are to be no survivors; and
(c) the perpetrator is in a position of effective command or control over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.92 War crime—mutilation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes the death of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.93 War crime—medical or scientific experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.94 War crime—destroying or seizing an adversary’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adversary; and
(c) the property is protected from the destruction or seizure under article 14 of Protocol II to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years
(2) Strict liability applies to paragraph (1)(c).
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions
268.95 War crime—medical procedure
A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical procedure; and
(b) the procedure seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is not justified by the state of health of the person or persons; and
(d) the perpetrator knows that, or is reckless as to whether, the conduct is consistent with generally accepted medical standards that would be applied under similar medical circumstances to persons who are of the same nationality as the perpetrator and are in no way deprived of liberty; and
(e) the person or persons are in the power of, or are interned, detained or otherwise deprived of liberty by, the country of the perpetrator as a result of an international armed conflict; and
(f) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.96 War crime—removal of blood, tissue or organs for transplantation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator removes from one or more persons blood, tissue or organs for transplantation; and
(b) in the case of the removal of blood—the removal:
(i) is not for transfusion; or
(ii) is for transfusion without the consent of the person or persons; and
(c) in the case of the removal of skin—the removal:
(i) is not for grafting; or
(ii) is for grafting without the consent of the person or persons; and
(d) the intent of the removal is non‑therapeutic; and
(e) the removal is not carried out under conditions consistent with generally accepted medical standards and controls designed for the benefit of the person or persons and of the recipient; and
(f) the person or persons are in the power of, or are interned, detained or otherwise deprived of liberty by, an adverse party as a result of an international armed conflict; and
(g) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means consent given voluntarily and without any coercion or inducement.
268.97 War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack against works or installations containing dangerous forces; and
(b) the attack is such that it will cause loss of life, injury to civilians, or damage to civilian objects, to such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(c) the perpetrator knows that the attack will cause loss of life, injury to civilians, or damage to civilian objects, to such an extent; and
(d) the attack results in death or serious injury to body or health; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.98 War crime—attacking undefended places or demilitarized zones
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more towns, villages, dwellings, buildings or demilitarized zones; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the attack results in death or serious injury to body or health; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.99 War crime—unjustifiable delay in the repatriation of prisoners of war or civilians
(1) A person (the perpetrator) commits an offence if:
(a) one or more persons are in the power of, or are interned, detained or otherwise deprived of liberty by, an adverse party as a result of an international armed conflict; and
(b) the perpetrator unjustifiably delays the repatriation of the person or persons to the person’s own country or the persons’ own countries; and
(c) the delay is in violation of Part IV of the Third Geneva Convention or Chapter XII of Section IV of Part III of the Fourth Geneva Convention.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(c).
268.100 War crime—apartheid
A person (the perpetrator) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a proscribed inhumane act or is of a nature and gravity similar to any proscribed inhumane act; and
(b) the perpetrator knows of, or is reckless at to, the factual circumstances that establish the character of the act; and
(c) the perpetrator’s conduct is committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.101 War crime—attacking protected objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not used in support of the military effort and are not located in the immediate proximity of military objectives:
(i) clearly recognised historic monuments;
(ii) works of art;
(iii) places of worship; and
(c) the monuments, works of art and places of worship constitute the cultural or spiritual heritage of peoples and have been given special protection by special arrangement (for example, within the framework of a competent international organisation); and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes against the administration of the justice of the International Criminal Court
268.102 Perjury
(1) A person commits the offence of perjury if:
(a) the person makes a sworn statement in or for the purposes of a proceeding before the International Criminal Court; and
(b) the statement is false.
Penalty: Imprisonment for 10 years.
(2) A person who is an interpreter commits the offence of perjury if:
(a) the person, by a sworn statement, gives an interpretation of a statement or other thing in or for the purposes of a proceeding before the International Criminal Court; and
(b) the interpretation is false or misleading.
Penalty: Imprisonment for 10 years.
268.103 Falsifying evidence
(1) A person commits an offence if the person makes false evidence with the intention of:
(a) influencing a decision on the institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the person:
(a) uses evidence that is false evidence and that the person believes is false evidence; and
(b) is reckless as to whether or not the use of the evidence could:
(i) influence a decision on the institution of a proceeding before the International Criminal Court; or
(ii) influence the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, making evidence includes altering evidence, but does not include perjury.
268.104 Destroying or concealing evidence
(1) A person commits an offence if the person destroys or conceals evidence with the intention of:
(a) influencing a decision on the institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(2) For the purposes of this section, destroying evidence includes making the evidence illegible, indecipherable or otherwise incapable of being identified.
268.105 Deceiving witnesses
A person commits an offence if the person deceives another person with the intention that the other person or a third person will:
(a) give false evidence in a proceeding before the International Criminal Court; or
(b) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
268.106 Corrupting witnesses or interpreters
(1) A person commits an offence if the person provides, or offers or promises to provide, a benefit to another person with the intention that the other person or a third person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person asks for, or receives or agrees to receive, a benefit for himself, herself or another person with the intention that he, she or another person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
(3) A person commits an offence if the person provides, or offers or promises to provide, a benefit to another person with the intention that the other person or a third person will:
(a) not attend as an interpreter at a proceeding before the International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter at such a proceeding.
Penalty: Imprisonment for 5 years.
268.107 Threatening witnesses or interpreters
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the person causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a) not attend as an interpreter at a proceeding before the International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter in such a proceeding.
Penalty: Imprisonment for 7 years.
268.108 Preventing witnesses or interpreters
(1) A person commits an offence if the person, by his or her conduct, intentionally prevents another person from attending as a witness or interpreter at a proceeding before the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes an offence against section 268.105, 268.106, 268.107, 268.109 or 268.110.
268.109 Preventing production of things in evidence
A person commits an offence if the person, by his or her conduct, intentionally prevents another person from producing in evidence at a proceeding before the International Criminal Court a thing that is legally required to be produced.
Penalty: Imprisonment for 5 years.
268.110 Reprisals against witnesses
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person who was a witness in a proceeding before the International Criminal Court:
(a) because of anything done by the other person in or for the purposes of the proceeding; and
(b) in the belief that the other person was a witness who had done that thing.
Penalty: Imprisonment for 5 years.
(2) It is a defence to a prosecution for an offence against subsection (1) that:
(a) the detriment to the witness was not (apart from this section) an offence; and
(b) the witness committed perjury in the proceeding before the International Criminal Court.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) In this section:
witness includes:
(a) a person who attends at a proceeding before the International Criminal Court as a witness but is not called as a witness; or
(b) an interpreter.
268.111 Reprisals against officials of the International Criminal Court
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person who is an official of the International Criminal Court:
(a) because of anything done by the other person; and
(b) in the belief that the other person was an official of that Court who had done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person causes or threatens to cause any detriment to another person who is an official of the International Criminal Court:
(a) because of anything done by a third person who is an official of that Court; and
(b) in the belief that the third person was an official of that Court who had done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
268.112 Perverting the course of justice
(1) A person commits an offence if the person, by his or her conduct, intentionally perverts the course of justice in respect of the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes the publication of any matter.
(3) In this section:
perverts includes obstructs, prevents or defeats.
268.113 Receipt of a corrupting benefit by an official of the International Criminal Court
(1) A person who is an official of the International Criminal Court commits an offence if:
(a) the person:
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another person; or
(iii) agrees to receive or obtain a benefit for himself, herself or another person; and
(b) the person does so with the intention that the exercise of the person’s duties as an official of the International Criminal Court will be influenced.
Penalty: Imprisonment for 10 years.
(2) For the purposes of subsection (1), it is immaterial whether the benefit is in the nature of a reward.
268.114 Subdivision not to apply to certain conduct
(1) This Subdivision does not apply to a person in respect of:
(a) conduct that results in a failure or refusal to issue a certificate under section 22 or 29 of the International Criminal Court Act 2002; or
(b) a failure or refusal to issue such a certificate; or
(c) conduct engaged in reliance on the absence of such a certificate.
(2) In this section:
conduct includes any one or more acts or omissions.
Subdivision K—Miscellaneous
268.115 Responsibility of commanders and other superiors
(1) The criminal responsibility imposed by this section is in addition to other grounds of criminal responsibility under the law in force in Australia for acts or omissions that are offences under this Division.
(2) A military commander or person effectively acting as a military commander is criminally responsible for offences under this Division committed by forces under his or her effective command and control, or effective authority and control, as the case may be, as a result of his or her failure to exercise control properly over those forces, where:
(a) the military commander or person either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences; and
(b) the military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over those subordinates, where:
(a) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and
(b) the offences concerned activities that were within the effective responsibility and control of the superior; and
(c) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
268.116 Defence of superior orders
(1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in subsection (3). See subsection 13.3(3).
268.117 Geographical jurisdiction
(1) Section 15.4 (extended geographical jurisdiction—Category D) applies to genocide, crimes against humanity and war crimes.
(2) Section 15.3 (extended geographical jurisdiction—Category C) applies to crimes against the administration of the justice of the International Criminal Court.
268.118 Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory for an offence under this Division if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence under this Division.
268.119 Offences related to exercise of jurisdiction of International Criminal Court
(1) A person must not:
(a) intentionally contravene an order that the International Criminal Court makes while sitting in Australia; or
(b) otherwise intentionally hinder the International Criminal Court in performing its functions while sitting in Australia.
Penalty: Imprisonment for 2 years.
(2) In this section:
Australia includes all the external Territories.
268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory.
268.121 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2) An offence against this Division may only be prosecuted in the name of the Attorney‑General.
(3) 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.
268.122 Attorney‑General’s decisions in relation to consents to be final
(1) Subject to any jurisdiction of the High Court under the Constitution, a decision by the Attorney‑General to give, or to refuse to give, a consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a decision includes a reference to the following:
(a) a decision to vary, suspend, cancel or revoke a consent that has been given;
(b) a decision to impose a condition or restriction in connection with the giving of, or a refusal to give, a consent or to remove a condition or restriction so imposed;
(c) a decision to do anything preparatory to the making of a decision to give, or to refuse to give, a consent or preparatory to the making of a decision referred to in paragraph (a) or (b), including a decision for the taking of evidence or the holding of an inquiry or investigation;
(d) a decision doing or refusing to do anything else in connection with a decision to give, or to refuse to give, a consent or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a decision whether or not to give a consent or a decision referred to in a paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court referred to in subsection (1) is exclusive of the jurisdiction of any other court.
268.123 Legal representation
The provisions of section 12 (other than subsection 12(2)) of the Geneva Conventions Act 1957 apply in relation to the trial of a person for an offence against this Division in the same way as they apply in relation to the trial of a protected prisoner of war.
268.124 Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions
If, in proceedings under this Division in respect of a grave breach of any of the Geneva Conventions or of Protocol I to the Geneva Conventions, a question arises under:
(a) Article 2 of the Geneva Convention concerned (which relates to the circumstances in which the Convention applies); or
(b) Article 1 of that Protocol (which relates to the circumstances in which the Protocol applies);
a certificate signed by the Minister responsible for legislation relating to foreign affairs certifying to any matter relevant to that question is prima facie evidence of the matter so certified.
Division 270—Slavery and slavery‑like conditions
Subdivision A—Preliminary
270.1A Definitions for Division 270
In this Division:
coercion includes coercion by any of the following:
(a) force;
(b) duress;
(c) detention;
(d) psychological oppression;
(e) abuse of power;
(f) taking advantage of a person’s vulnerability.
conducting a business includes:
(a) taking any part in the management of the business; and
(b) exercising control or direction over the business; and
(c) providing finance for the business.
deceive has the same meaning as in Division 271 (see section 271.1).
Note: Deception has a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
forced labour has the meaning given by section 270.6.
forced marriage has the meaning given by section 270.7A.
servitude has the meaning given by section 270.4.
slavery has the meaning given by section 270.1.
slavery‑like offence means an offence against any of the following provisions:
(a) section 270.5 (servitude offences);
(b) section 270.6A (forced labour offences);
(c) section 270.7 (deceptive recruiting for labour or services);
(d) section 270.7B (forced marriage offences).
threat means:
(a) a threat of coercion; or
(b) a threat to cause a person’s deportation or removal from Australia; or
(c) a threat of any other detrimental action, unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person.
Note: Threat includes a threat made by any conduct, whether express or implied and whether conditional or unconditional (see the definition in the Dictionary).
Subdivision B—Slavery
270.1 Definition of slavery
For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.
270.2 Slavery is unlawful
Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.
270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally:
(aa) reduces a person to slavery; or
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:
(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;
is guilty of an offence.
Penalty: Imprisonment for 25 years.
(2) A person who:
(a) whether within or outside Australia:
(i) enters into any commercial transaction involving a slave; or
(ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or
(iii) exercises control or direction over, or provides finance for, any act of slave trading; and
(b) is reckless as to whether the transaction or act involves a slave, slavery, slave trading or the reduction of a person to slavery;
is guilty of an offence.
Penalty: Imprisonment for 17 years.
(3) In this section:
commercial transaction involving a slave includes a commercial transaction by which a person is reduced to slavery.
slave trading includes:
(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.
(4) A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.
(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).
Subdivision C—Slavery‑like conditions
270.4 Definition of servitude
(1) For the purposes of this Division, servitude is the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception:
(a) a reasonable person in the position of the victim would not consider himself or herself to be free:
(i) to cease providing the labour or services; or
(ii) to leave the place or area where the victim provides the labour or services; and
(b) the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services.
(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3) The victim may be in a condition of servitude whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
270.5 Servitude offences
Causing a person to enter into or remain in servitude
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in servitude.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 20 years; or
(b) in any other case—imprisonment for 15 years.
Conducting a business involving servitude
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the servitude of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 20 years; or
(b) in any other case—imprisonment for 15 years.
Alternative verdict of forced labour
(3) Subsection (4) applies if, in a prosecution for an offence (the servitude offence) against a provision listed in column 1 of the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the forced labour offence) against the corresponding provision listed in column 2 of the table.
| Servitude and forced labour offences |
| Item | Column 1 Servitude offences | Column 2 Forced labour offences |
| 1 | Subsection (1) of this section | Subsection 270.6A(1) |
| 2 | Subsection (2) of this section | Subsection 270.6A(2) |
(4) The trier of fact may find the defendant not guilty of the servitude offence, but guilty of the forced labour offence, so long as the defendant has been afforded procedural fairness in relation to that finding of guilt.
270.6 Definition of forced labour
(1) For the purposes of this Division, forced labour is the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:
(a) to cease providing the labour or services; or
(b) to leave the place or area where the victim provides the labour or services.
(2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3) The victim may be in a condition of forced labour whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
270.6A Forced labour offences
Causing a person to enter into or remain in forced labour
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in forced labour.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 12 years; or
(b) in any other case—imprisonment for 9 years.
Conducting a business involving forced labour
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 12 years; or
(b) in any other case—imprisonment for 9 years.
Note: On a trial for an offence against section 270.5 (servitude offences), the trier of fact may find a defendant not guilty of that offence but guilty of the corresponding offence under this section (see subsections 270.5(3) and (4)).
270.7 Deceptive recruiting for labour or services
A person (the recruiter) commits an offence if:
(a) the recruiter engages in conduct; and
(b) the recruiter engages in the conduct with the intention of inducing another person (the victim) to enter into an engagement to provide labour or services; and
(c) the conduct causes the victim to be deceived about:
(i) the extent to which the victim will be free to leave the place or area where the victim provides the labour or services; or
(ii) the extent to which the victim will be free to cease providing the labour or services; or
(iii) the extent to which the victim will be free to leave his or her place of residence; or
(iv) if there is or will be a debt owed or claimed to be owed by the victim in connection with the engagement—the quantum, or the existence, of the debt owed or claimed to be owed; or
(v) the fact that the engagement will involve exploitation, or the confiscation of the victim’s travel or identity documents; or
(vi) if the engagement is to involve the provision of sexual services—that fact, or the nature of sexual services to be provided (for example, whether those services will require the victim to have unprotected sex).
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 9 years; or
(b) in any other case—imprisonment for 7 years.
270.7A Definition of forced marriage
(1) For the purposes of this Division, a marriage is a forced marriage if, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting.
(2) For the purposes of subsection (1), marriage includes the following:
(a) a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;
(b) a marriage recognised under a law of a foreign country;
(c) a relationship registered (however that process is described) under a law of a foreign country, if the relationship is of the same, or a similar, type as any registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;
(d) a marriage (including a relationship or marriage mentioned in paragraph (a), (b) or (c)) that is void, invalid, or not recognised by law, for any reason, including the following:
(i) a party to the marriage has not freely or fully consented to the marriage (for example, because of natural, induced or age‑related incapacity);
(ii) a party to the marriage is married (within the meaning of this subsection) to more than one person.
Note: Section 2E of the Acts Interpretation Act 1901 covers relationships registered under a law of a State or Territory that are prescribed by regulations under that Act.
(3) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
270.7B Forced marriage offences
Causing a person to enter into a forced marriage
(1) A person (the first person) commits an offence if:
(a) the first person engages in conduct; and
(b) the conduct causes another person to enter into a forced marriage as the victim of the marriage.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 7 years; or
(b) in any other case—imprisonment for 4 years.
Being a party to a forced marriage
(2) A person commits an offence if:
(a) the person is a party to a marriage (within the meaning of section 270.7A); and
(b) the marriage is a forced marriage; and
(c) the person is not a victim of the forced marriage.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—imprisonment for 7 years; or
(b) in any other case—imprisonment for 4 years.
(3) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1.
(4) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3)).
270.8 Slavery‑like offences—aggravated offences
(1) For the purposes of this Division, a slavery‑like offence committed by a person (the offender) against another person (the victim) is an aggravated offence if any of the following applies:
(a) the victim is under 18;
(b) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) If, on a trial for an aggravated offence, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is otherwise satisfied that the defendant is guilty of the corresponding slavery‑like offence, it may find the defendant not guilty of the aggravated offence, but guilty of the corresponding slavery‑like offence.
(4) Subsection (3) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the corresponding slavery‑like offence.
270.9 Slavery‑like offences—jurisdictional requirement
Section 15.2 (extended geographical jurisdiction—category B) applies to a slavery‑like offence.
270.10 Slavery‑like offences—relevant evidence
(1) For the purposes of proceedings for a slavery‑like offence, the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether a person (the alleged victim) against whom the offence is alleged to have been committed has been coerced, threatened or deceived.
(2) The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim and the alleged offender;
(b) the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;
(c) the personal circumstances of the alleged victim, including but not limited to:
(i) whether he or she is entitled to be in Australia under the Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or another language; and
(iii) the extent of his or her social and physical dependence on the alleged offender.
(3) Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant proceedings; or
(b) limit the manner in which evidence may be given or the admissibility of evidence.
Subdivision D—Offences against Division 270: general
270.11 Offences against Division 270—no defence of victim consent or acquiescence
To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.
270.12 Offences against Division 270—other laws not excluded
(1) This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
(2) Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this Division; or
(b) a similar act or omission;
an offence against the law of the Commonwealth, State or Territory.
(3) Subsection (2) applies even if the other law of the Commonwealth, or the law of the State or Territory, does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Division.
270.13 Offences against Division 270—double jeopardy
If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.
Division 271—Trafficking in persons and debt bondage
Subdivision A—Definitions
271.1 Definitions
In this Division:
coercion has the same meaning as in Division 270 (see section 270.1A).
confiscate, in relation to a person’s travel or identity document, means to take possession of the document, whether permanently or otherwise, to the exclusion of the person, or to destroy the document.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
deceive means mislead as to fact (including the intention of any person) or as to law, by words or other conduct.
Note: Deception has a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
exploitation has the meaning given by section 271.1A.
threat has the same meaning as in Division 270 (see section 270.1A).
271.1A Definition of exploitation
For the purposes of this Division, exploitation, of one person (the victim) by another person, occurs if the other person’s conduct causes the victim to enter into any of the following conditions:
(a) slavery, or a condition similar to slavery;
(b) servitude;
(c) forced labour;
(d) forced marriage;
(e) debt bondage.
Note: Division 270 (slavery and slavery‑like offences) deals with slavery, servitude, forced labour and forced marriage. Subdivision C of this Division deals with debt bondage.
Subdivision B—Offences relating to trafficking in persons
271.2 Offence of trafficking in persons
(1) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that entry or proposed entry or in respect of that receipt.
Penalty: Imprisonment for 12 years.
(1A) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that exit or proposed exit.
Penalty: Imprisonment for 12 years.
(1B) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) in organising or facilitating that entry or proposed entry, or that receipt, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 12 years.
(1C) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) in organising or facilitating that exit or proposed exit, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 12 years.
(2) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person deceives the other person about the fact that the other person’s entry or proposed entry, the other person’s receipt or any arrangements for the other person’s stay in Australia, will involve the provision by the other person of sexual services or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) the first person deceives the other person about the fact that the other person’s exit or proposed exit is for purposes that involve the provision by the other person of sexual services outside Australia or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) there is an arrangement for the other person to provide sexual services in Australia; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services—the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(2C) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit of another person from Australia; and
(b) there is an arrangement for the other person to provide sexual services outside Australia; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services—the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraphs (1)(c) and (1A)(c).
271.3 Trafficking in persons—aggravated offence
(1) A person (the first person) commits an aggravated offence of trafficking in persons if the first person commits the offence of trafficking in persons in relation to another person (the victim) and any of the following applies:
(a) the first person commits the offence intending that the victim will be exploited, either by the first person or another:
(i) if the offence of trafficking in persons is an offence against subsection 271.2(1), (1B), (2) or (2B)—after entry into Australia; or
(ii) if the offence of trafficking in persons is an offence against subsection 271.2(1A), (1C), (2A) or (2C)—after exit from Australia;
(b) the first person, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.2, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.2.
Note: Section 271.2 provides for offences of trafficking in persons.
271.4 Offence of trafficking in children
(1) A person (the first person) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the entry or proposed entry into Australia, or the receipt in Australia, of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that entry or proposed entry, or that receipt, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 25 years.
(2) A person (the first person) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the exit or proposed exit from Australia of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that exit or proposed exit, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 25 years.
271.5 Offence of domestic trafficking in persons
(1) A person (the first person) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation or proposed transportation of another person from one place in Australia to another place in Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that transportation or proposed transportation.
Penalty: Imprisonment for 12 years.
(2) A person (the first person) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation or proposed transportation of another person from one place in Australia to another place in Australia; and
(b) in organising or facilitating that transportation or proposed transportation, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that transportation.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) the first person deceives the other person about the fact that the transportation, or any arrangements the first person has made for the other person following the transportation, will involve the provision by the other person of sexual services or will involve the other person’s exploitation or the confiscation of the other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) there is an arrangement for the other person to provide sexual services; and
(c) the first person deceives the other person about any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services—the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraph (1)(c).
271.6 Domestic trafficking in persons—aggravated offence
(1) A person (the first person) commits an aggravated offence of domestic trafficking in persons if the first person commits the offence of domestic trafficking in persons in relation to another person (the victim) and any of the following applies:
(a) the first person commits the offence intending that the victim will be exploited, either by the first person or by another, after arrival at the place to which the person has been transported;
(b) the first person, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.5, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.5.
Note: Section 271.5 provides for offences of domestic trafficking in persons.
271.7 Offence of domestic trafficking in children
A person commits an offence of domestic trafficking in children if:
(a) the first‑mentioned person organises or facilitates the transportation of another person from one place in Australia to another place in Australia; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that transportation, the first‑mentioned person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first‑mentioned person or another, during or following the transportation to that other place; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first‑mentioned person or another, during or following the transportation to that other place.
Penalty: Imprisonment for 25 years.
Subdivision BA—Organ trafficking
271.7A Removal of organs contrary to this Subdivision
The removal of a person’s organ is contrary to this Subdivision if:
(a) the removal, or entering into an agreement for the removal, would be contrary to the law of the State or Territory where it is, or is to be, carried out; or
(b) neither the victim, nor the victim’s guardian, consents to the removal, and it would not meet a medical or therapeutic need of the victim.
271.7B Offence of organ trafficking—entry into and exit from Australia
Entry into Australia
(1) A person (the offender) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the entry or proposed entry, or the receipt, of another person (the victim) into Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that entry or receipt.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
Exit from Australia
(2) A person (the offender) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the exit or proposed exit of another person (the victim) from Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that exit.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
271.7C Organ trafficking—aggravated offence
(1) A person (the offender) commits an aggravated offence of organ trafficking if the offender commits an offence of organ trafficking in relation to another person (the victim) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person:
(i) if the offence of organ trafficking is an offence against subsection 271.7B(1)—after or in the course of entry into Australia; or
(ii) if the offence of organ trafficking is an offence against subsection 271.7B(2)—after or in the course of exit from Australia;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18—imprisonment for 25 years; or
(b) in any other case—imprisonment for 20 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.7B, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7B.
Note: Section 271.7B provides for offences of organ trafficking.
271.7D Offence of domestic organ trafficking
A person (the offender) commits an offence of domestic organ trafficking if:
(a) the offender engages in conduct consisting of the organisation, or facilitation, of the transportation or proposed transportation of another person (the victim) from one place in Australia to another place in Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that transportation.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
271.7E Domestic organ trafficking—aggravated offence
(1) A person (the offender) commits an aggravated offence of domestic organ trafficking if the offender commits an offence of domestic organ trafficking in relation to another person (the victim) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person, after arrival at the place to which the person has been transported, or in the course of transportation;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18—imprisonment for 25 years; or
(b) in any other case—imprisonment for 20 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.7D, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7D.
Note: Section 271.7D provides for offences of domestic organ trafficking.
Subdivision BB—Harbouring a victim
271.7F Harbouring a victim
(1) A person (the offender) commits an offence of harbouring a victim if:
(a) the offender harbours, receives or conceals another person (the victim); and
(b) the harbouring, receipt or concealing of the victim:
(i) assists a third person in connection with any offence committed by the third person (the third person offence); or
(ii) furthers a third person’s purpose in relation to any offence committed by the third person (the third person offence); and
(c) the third person offence is an offence against this Division (apart from this section) or Division 270.
Penalty: Imprisonment for 4 years.
(2) Recklessness applies in relation to paragraph (1)(b).
(3) Absolute liability applies in relation to paragraph (1)(c).
(4) A person may be found guilty of an offence against subsection (1) even if the third person has not been prosecuted for, or has not been found guilty, of any other offence.
271.7G Harbouring a victim—aggravated offence
(1) A person (the offender) commits an aggravated offence of harbouring a victim if:
(a) the offender commits an offence of harbouring a victim in relation to another person (the victim); and
(b) the victim is under 18.
Penalty: Imprisonment for 7 years.
(2) If, on a trial for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that the defendant is guilty of an offence against section 271.7F, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7F.
Note: Section 271.7F provides for the offence of harbouring a victim.
Subdivision C—Offences relating to debt bondage
271.8 Offence of debt bondage
A person commits an offence of debt bondage if:
(a) the person engages in conduct that causes another person to enter into debt bondage; and
(b) the person intends to cause the other person to enter into debt bondage.
Penalty: Imprisonment for 4 years.
271.9 Debt bondage—aggravated offence
(1) A person (the offender) commits an offence of aggravated debt bondage if the offender commits an offence of debt bondage in relation to another person (the victim) and any of the following applies:
(a) the victim is under 18;
(b) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 7 years.
(2) If, on a trial for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that the defendant is guilty of an offence against section 271.8, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.8.
Note: Section 271.8 provides for the offence of debt bondage.
Subdivision D—Offences against Division 271: general
271.10 Jurisdictional requirements—offences other than domestic trafficking in persons or organs
Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against section 271.2, 271.3, 271.4, 271.7B, 271.7C, 271.7F, 271.7G, 271.8 or 271.9.
271.11 Jurisdictional requirements—offences of domestic trafficking in persons or organs
A person commits an offence against section 271.5, 271.6, 271.7, 271.7D or 271.7E only if one or more of the following paragraphs applies:
(a) the conduct constituting the offence occurs to any extent outside Australia;
(b) the conduct constituting the offence involves transportation across State borders, either for reward or in connection with a commercial arrangement;
(c) the conduct constituting the offence occurs within a Territory or involves transportation to or from a Territory;
(d) the conduct constituting the offence is engaged in by, or on behalf of, a constitutional corporation, or in circumstances where the victims of the trafficking conduct were intended to be employed by a constitutional corporation;
(e) some of the conduct constituting the offence is engaged in by communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(v) of the Constitution;
(f) the victim of the conduct constituting the offence is an alien for the purposes of paragraph 51(xix) of the Constitution.
271.11A Offences against Division 271—relevant evidence
(1) For the purposes of proceedings for an offence against this Division, the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether, in relation to a person (the alleged victim) against whom the offence is alleged to have been committed:
(a) in the case of an offence against Subdivision B or BB—the alleged victim has been coerced, threatened or deceived; or
(b) in the case of an offence against Subdivision BA—the alleged victim, or the alleged victim’s guardian, has consented to the removal of an organ of the alleged victim; or
(c) in the case of an offence against Subdivision C—another person has caused the alleged victim to enter into debt bondage.
(2) The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim and the alleged offender;
(b) the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;
(c) the personal circumstances of the alleged victim, including but not limited to:
(i) whether he or she is entitled to be in Australia under the Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or another language; and
(iii) the extent of his or her social and physical dependence on the alleged offender.
(3) If subsection (1) applies in relation to the consent of an alleged victim’s guardian to the removal of an organ of the alleged victim, a reference in subsection (2) to the alleged victim is taken to include a reference to the alleged victim’s guardian.
(4) Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant proceedings; or
(b) limit the manner in which evidence may be given or the admissibility of evidence.
271.11B Offences against Division 271—no defence of victim consent or acquiescence
To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.
271.12 Offences against Division 271—other laws not excluded
(1) This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
(2) Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this Division; or
(b) a similar act or omission;
an offence against the law of the Commonwealth, State or Territory.
(3) Subsection (2) applies even if the other law of the Commonwealth, or the law of the State or Territory, does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Division.
271.13 Double jeopardy
If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.
Division 272—Child sex offences outside Australia
Subdivision A—Preliminary
272.1 Definitions
In this Division:
cause a person to engage in sexual intercourse or other sexual activity has the meaning given by section 272.2.
offence, in the case of a reference to an offence against this Division or against a particular provision of it, has a meaning affected by section 272.5.
position of trust or authority has the meaning given by subsection 272.3(1).
sexual intercourse has the meaning given by section 272.4.
272.2 When conduct causes a person to engage in sexual intercourse or other sexual activity
For the purposes of this Division, a person’s conduct causes another person to engage in sexual intercourse or other sexual activity if it substantially contributes to the other person engaging in sexual intercourse or other sexual activity.
272.3 Meaning of position of trust or authority
(1) For the purposes of this Code, a person is in a position of trust or authority in relation to another person if:
(a) the person is the other person’s parent, step‑parent, or grandparent; or
(b) the person is the other person’s foster parent, guardian or carer; or
(c) the person is a teacher engaged in the education of the other person; or
(d) the person is a religious official or spiritual leader (however described) providing pastoral care or religious instruction to the other person; or
(e) the person is the other person’s sports coach; or
(f) the person is a medical practitioner, nurse, psychologist, other health professional (however described), counsellor or social worker providing professional services to the other person; or
(g) the person is a member of a police force or police service, or a person employed or providing services in a correctional institution (however described), performing duties in relation to the other person; or
(h) the person:
(i) is an employer of the other person; or
(ii) has the authority to determine significant aspects of the other person’s terms and conditions of employment; or
(iii) has the authority to terminate the other person’s employment (whether the other person is being paid in respect of that employment or is working in a voluntary capacity).
(2) Without limiting who is a grandparent of a person for the purposes of this section, a person (the first person) is the grandparent of another person if the first person is a parent or step‑parent of a parent or step‑parent of the other person.
272.4 Meaning of sexual intercourse
(1) In this Code, sexual intercourse means:
(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or
(b) the penetration, to any extent, of the vagina or anus of a person, by an object, carried out by another person; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).
(2) In this Code, sexual intercourse does not include an act of penetration that:
(a) is carried out for a proper medical or hygienic purpose; or
(b) is carried out for a proper law enforcement purpose.
(3) For the purposes of this section, vagina includes:
(a) any part of a female person’s genitalia; and
(b) a surgically constructed vagina.
272.5 Meaning of offence against this Division and extension of criminal responsibility
(1) A reference in this Division (except section 272.19, which deals with encouraging an offence against this Division) to an offence against this Division, or against a particular provision of it, includes:
(a) a reference to:
(i) an offence against section 6 of the Crimes Act 1914 (accessory after the fact); or
(ii) an offence against section 11.1 (attempt), 11.5 (conspiracy) or 272.19 of this Code;
that relates to an offence against this Division or against that provision of it; and
(b) a reference to an offence against this Division, or against that provision of it, because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).
(2) A reference in section 272.19 (encouraging offence against this Division) to an offence against this Division or against a particular provision of it does not include a reference to such an offence because of section 11.2 (complicity and common purpose) or 11.2A (joint commission).
(3) Section 11.1 (attempt) does not apply to an offence against:
(a) section 272.14 (procuring child to engage in sexual activity outside Australia); or
(b) section 272.15 (“grooming” child to engage in sexual activity outside Australia); or
(c) section 272.20 (preparing for or planning offence against this Division).
(4) Section 11.4 (incitement) does not apply to an offence against this Division.
(5) Section 11.5 (conspiracy) does not apply to an offence against section 272.19 (encouraging offence against this Division).
272.6 Who can be prosecuted for an offence committed outside Australia
A person must not be charged with an offence against this Division that the person allegedly committed wholly outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia.
272.7 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
Subdivision B—Sexual offences against children outside Australia
272.8 Sexual intercourse with child outside Australia
Engaging in sexual intercourse with child
(1) A person commits an offence if:
(a) the person engages in sexual intercourse with another person (the child); and
(b) the child is under 16; and
(c) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual intercourse in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual intercourse in the presence of the person; and
(c) the child is under 16 when the sexual intercourse is engaged in; and
(d) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
272.9 Sexual activity (other than sexual intercourse) with child outside Australia
Engaging in sexual activity with child
(1) A person commits an offence if:
(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child); and
(b) the child is under 16; and
(c) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.
Causing child to engage in sexual activity in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
(c) the child is under 16 when the sexual activity is engaged in; and
(d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).
Note: For absolute liability, see section 6.2.
Defence—child present but defendant does not intend to derive gratification
(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child being in the presence of the defendant while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For a defence based on belief about age, see section 272.16.
272.10 Aggravated offence—child with mental impairment or under care, supervision or authority of defendant
(1) A person commits an offence against this section (the aggravated offence) if:
(a) the person commits an offence (the underlying offence) against one of the following provisions in relation to another person (the child):
(i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);
(ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);
(iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);
(iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and
(b) either or both of the following apply at the time the person commits the underlying offence:
(i) the child has a mental impairment;
(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.
Penalty: Imprisonment for 25 years.
(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
(4) Absolute liability applies to subparagraph (1)(b)(i).
Note: For absolute liability, see section 6.2.
(5) Strict liability applies to subparagraph (1)(b)(ii).
Note: For strict liability, see section 6.1.
Defence—belief that child did not have mental impairment
(6) Subparagraph (1)(b)(i) does not apply if the defendant proves that, at the time he or she committed the underlying offence, he or she believed that the child did not have a mental impairment.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
(7) In determining whether the defendant had the belief mentioned in subsection (6), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
272.11 Persistent sexual abuse of child outside Australia
(1) A person commits an offence against this section if the person commits an offence (the underlying offence) against one or more of the following provisions in relation to the same person (the child) on 3 or more separate occasions during any period:
(a) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);
(b) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);
(c) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);
(d) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia).
Penalty: Imprisonment for 25 years.
(2) There is no fault element for any of the physical elements described in subsection (1) other than the fault elements (however described), if any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for the purposes of subsection (1) if the person has a defence to the underlying offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether the underlying offence, or the conduct constituting the underlying offence, is the same on each occasion.
Certain matters need not be proved
(5) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the occasions on which the conduct constituting the offence against this section occurred.
Content of charge
(6) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the person during that period.
Trier of fact to be satisfied of certain matters
(7) In order for the person to be found guilty of an offence against this section:
(a) the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions during the period concerned on which the person engaged in conduct constituting an offence against subsection 272.8(1) or (2) or 272.9(1) or (2), of a nature described in the charge, in relation to the child; and
(b) the trier of fact must be so satisfied about the material facts of the 3 such occasions, although the trier of fact need not be so satisfied about the dates or the order of those occasions; and
(c) if the trier of fact is a jury and more than 3 such occasions are relied on as evidence of the commission of an offence against this section—all the members of the jury must be so satisfied about the same 3 incidents.
(8) In proceedings for an offence against this section, the judge must warn the jury (if any) of the requirements of subsection (7).
Double jeopardy etc.
(9) A person who has been convicted or acquitted of an offence against this section may not be convicted of another offence against section 272.8, 272.9 or 272.10 that is alleged to have been committed in relation to the child in the period during which the person was alleged to have committed the offence against this section.
(10) However, subsection (9) does not prevent an alternative verdict under section 272.28.
(11) A person who has been convicted or acquitted of an offence against section 272.8, 272.9 or 272.10 in relation to a person (the child) may not be convicted of an offence against this section in relation to the child if any of the occasions relied on as evidence of the commission of the offence against this section includes the conduct that constituted the offence of which the person was convicted or acquitted.
272.12 Sexual intercourse with young person outside Australia—defendant in position of trust or authority
Engaging in sexual intercourse with young person
(1) A person commits an offence if:
(a) the person engages in sexual intercourse with another person (the young person); and
(b) the young person is at least 16 but under 18; and
(c) the person is in a position of trust or authority in relation to the young person; and
(d) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 years.
Causing young person to engage in sexual intercourse in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the young person); and
(b) that conduct causes the young person to engage in sexual intercourse in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual intercourse is engaged in; and
(d) the person is in a position of trust or authority in relation to the young person; and
(e) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c) and (e).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(5) Strict liability applies to paragraphs (1)(c) and (2)(d).
Note: For strict liability, see section 6.1.
272.13 Sexual activity (other than sexual intercourse) with young person outside Australia—defendant in position of trust or authority
Engaging in sexual activity with young person
(1) A person commits an offence if:
(a) the person engages in sexual activity (other than sexual intercourse) with another person (the young person); and
(b) the young person is at least 16 but under 18; and
(c) the person is in a position of trust or authority in relation to the young person; and
(d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 7 years.
Causing young person to engage in sexual activity in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the young person); and
(b) that conduct causes the young person to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual activity is engaged in; and
(d) the person is in a position of trust or authority in relation to the young person; and
(e) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 7 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c) and (e).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(5) Strict liability applies to paragraphs (1)(c) and (2)(d).
Note: For strict liability, see section 6.1.
Defence—young person present but defendant does not intend to derive gratification
(6) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the young person being in the presence of the defendant while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the young person during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For a defence based on belief about age, see section 272.16.
272.14 Procuring child to engage in sexual activity outside Australia
(1) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
272.15 “Grooming” child to engage in sexual activity outside Australia
(1) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity (whether or not with the person) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 12 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
272.16 Defence based on belief about age
Offences involving sexual intercourse or other sexual activity with a child—belief that child at least 16
(1) It is a defence to a prosecution for an offence against section 272.8 or 272.9 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the child was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving sexual intercourse or other sexual activity with young person—belief that young person at least 18
(2) It is a defence to a prosecution for an offence against section 272.12 or 272.13 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the young person was at least 18.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving procuring or “grooming” child for sexual activity—belief that child at least 16
(3) It is a defence to a prosecution for an offence against section 272.14 or 272.15 if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the child was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Trier of fact may take into account whether belief reasonable
(4) In determining whether the defendant had the belief mentioned in subsection (1), (2) or (3), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
272.17 Defence based on valid and genuine marriage
Offences involving engaging in sexual intercourse or other sexual activity with child or young person
(1) It is a defence to a prosecution for an offence against subsection 272.8(1), 272.9(1), 272.12(1) or 272.13(1) if the defendant proves that:
(a) at the time of the sexual intercourse or sexual activity, there existed between the defendant and the child or the young person a marriage that was valid, or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the offence was committed; or
(iii) the place of the defendant’s residence or domicile; and
(b) when it was solemnised, the marriage was genuine.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving procuring or “grooming” child for sexual activity
(2) It is a defence to a prosecution for an offence against subsection 272.14(1) or 272.15(1) if the defendant proves that:
(a) at the time he or she committed the offence, there existed between the defendant and the child a marriage that was valid, or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the offence was committed; or
(iii) the place of the defendant’s residence or domicile; and
(b) when it was solemnised, the marriage was genuine.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia
272.18 Benefiting from offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of benefiting from an offence against this Division; and
(c) the conduct is reasonably capable of resulting in the person benefiting from such an offence.
Penalty: Imprisonment for 20 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not the person intends to benefit financially from an offence against this Division; and
(c) whether or not an offence against this Division is in fact committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
272.19 Encouraging offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and
(c) the conduct is reasonably capable of encouraging such an offence.
Penalty: Imprisonment for 20 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not an offence against this Division is in fact committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(4) In this section, encourage means:
(a) encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or
(b) aid, facilitate, or contribute to, in any way whatever.
272.20 Preparing for or planning offence against this Division
Offences involving sexual intercourse or other sexual activity with child, and benefiting offence
(1) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
Penalty: Imprisonment for 10 years.
Offences involving sexual intercourse or other sexual activity with young person
(2) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.12 or 272.13.
Penalty: Imprisonment for 5 years.
(3) Subsections (1) and (2) apply:
(a) whether the act is done within or outside Australia; and
(b) whether or not an offence against a provision referred to in paragraph (1)(b) or (2)(b) is in fact committed; and
(c) whether or not the act is done in preparation for, or planning, a specific offence against a provision referred to in paragraph (1)(b) or (2)(b); and
(d) whether or not the act is done in preparation for, or planning, more than one offence against a provision referred to in paragraph (1)(b) or (2)(b).
Subdivision E—Other rules about conduct of trials
272.27 Evidence relating to a person’s age
(1) For the purposes of this Division, evidence that a person was represented to the defendant as being under or of a particular age is, in the absence of evidence to the contrary, proof that the defendant believed that person to be under or of that age.
(2) In determining for the purposes of this Division how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(3) Subsection (2) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.
(4) If, on a trial for an offence against this Division, evidence may be treated as admissible because of subsection (2), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
272.28 Alternative verdicts
If, on a trial for an offence (the column 1 offence) against a provision referred to in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of the column 1 offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the column 2 offence) against a provision referred to in column 2 of that item;
it may find the defendant not guilty of the column 1 offence but guilty of the column 2 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
| Alternative verdicts |
| Item | Column 1 | Column 2 |
| 1 | subsection 272.8(1) | subsection 272.9(1) |
| 2 | subsection 272.8(2) | subsection 272.9(2) |
| 3 | subsection 272.9(1) | subsection 272.8(1) |
| 4 | subsection 272.9(2) | subsection 272.8(2) |
| 5 | subsection 272.10(1) | subsection 272.8(1), 272.8(2), 272.9(1) or 272.9(2) |
| 6 | subsection 272.11(1) | subsection 272.8(1), 272.8(2), 272.9(1), 272.9(2) or 272.10(1) |
| 7 | subsection 272.12(1) | subsection 272.13(1) |
| 8 | subsection 272.12(2) | subsection 272.13(2) |