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...................................................... 46
268.72................... War crime—cruel treatment.............................................. 48
268.73................... War crime—torture........................................................... 49
268.74................... War crime—outrages upon personal dignity..................... 50
268.75................... War crime—taking hostages............................................. 51
268.76................... War crime—sentencing or execution without due process 52
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 54
268.77................... War crime—attacking civilians......................................... 54
268.78................... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 54
268.79................... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission.......................................................................................... 55
268.80................... War crime—attacking protected objects............................ 56
268.81................... War crime—pillaging........................................................ 56
268.82................... War crime—rape............................................................... 57
268.83................... War crime—sexual slavery............................................... 58
268.84................... War crime—enforced prostitution..................................... 59
268.85................... War crime—forced pregnancy.......................................... 60
268.86................... War crime—enforced sterilisation..................................... 61
268.87................... War crime—sexual violence............................................. 61
268.88................... War crime—using, conscripting or enlisting children....... 63
268.89................... War crime—displacing civilians....................................... 65
268.90................... War crime—treacherously killing or injuring.................... 65
268.91................... War crime—denying quarter............................................. 66
268.92................... War crime—mutilation...................................................... 66
268.93................... War crime—medical or scientific experiments.................. 67
268.94................... War crime—destroying or seizing an adversary’s property 68
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions 69
268.95................... War crime—medical procedure......................................... 69
268.96................... War crime—removal of blood, tissue or organs for transplantation 70
268.97................... War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians.................................................... 70
268.98................... War crime—attacking undefended places or demilitarized zones 71
268.99................... War crime—unjustifiable delay in the repatriation of prisoners of war or civilians 72
268.100................. War crime—apartheid....................................................... 72
268.101................. War crime—attacking protected objects............................ 73
Subdivision J—Crimes against the administration of the justice of the International Criminal Court 73
268.102................. Perjury.............................................................................. 73
268.103................. Falsifying evidence........................................................... 74
268.104................. Destroying or concealing evidence................................... 74
268.105................. Deceiving witnesses......................................................... 75
268.106................. Corrupting witnesses or interpreters................................. 75
268.107................. Threatening witnesses or interpreters................................ 76
268.108................. Preventing witnesses or interpreters................................. 76
268.109................. Preventing production of things in evidence..................... 77
268.110................. Reprisals against witnesses............................................... 77
268.111................. Reprisals against officials of the International Criminal Court 78
268.112................. Perverting the course of justice......................................... 78
268.113................. Receipt of a corrupting benefit by an official of the International Criminal Court 79
268.114................. Subdivision not to apply to certain conduct...................... 79
Subdivision K—Miscellaneous 80
268.115................. Responsibility of commanders and other superiors.......... 80
268.116................. Defence of superior orders............................................... 81
268.117................. Geographical jurisdiction.................................................. 81
268.118................. Double jeopardy............................................................... 81
268.119................. Offences related to exercise of jurisdiction of International Criminal Court 82
268.120................. Saving of other laws......................................................... 82
268.121................. Bringing proceedings under this Division........................ 82
268.122................. Attorney‑General’s decisions in relation to consents to be final 82
268.123................. Legal representation.......................................................... 83
268.124................. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 84
268.125................. Meaning of civilian........................................................... 84
Division 270—Slavery and slavery‑like offences 85
Subdivision A—Preliminary 85
270.1A.................. Definitions for Division 270............................................. 85
Subdivision B—Slavery 87
270.1..................... Definition of slavery......................................................... 87
270.2..................... Slavery is unlawful........................................................... 87
270.3..................... Slavery offences............................................................... 87
270.3A.................. Slavery offences—geographical jurisdiction..................... 88
270.3B................... Prosecutions..................................................................... 88
Subdivision C—Slavery‑like offences 89
270.4..................... Definition of servitude...................................................... 89
270.5..................... Servitude offences............................................................ 89
270.6..................... Definition of forced labour............................................... 91
270.6A.................. Forced labour offences..................................................... 91
270.7..................... Deceptive recruiting for labour or services....................... 92
270.7A.................. Definition of forced marriage.......................................... 93
270.7B................... Forced marriage offences.................................................. 94
270.7C................... Offence of debt bondage................................................... 95
270.8..................... Slavery‑like offences—aggravated offences..................... 95
270.9..................... Slavery‑like offences—jurisdictional requirement............ 96
270.10................... Slavery‑like offences—relevant evidence......................... 96
Subdivision D—Offences against Division 270: general 98
270.11................... Offences against Division 270—no defence of victim consent or acquiescence 98
270.12................... Offences against Division 270—other laws not excluded 98
270.13................... Offences against Division 270—double jeopardy............ 99
Division 271—Trafficking in persons 100
Subdivision A—Definitions 100
271.1..................... Definitions...................................................................... 100
271.1A.................. Definition of exploitation................................................ 100
Subdivision B—Offences relating to trafficking in persons 101
271.2..................... Offence of trafficking in persons.................................... 101
271.3..................... Trafficking in persons—aggravated offence................... 104
271.4..................... Offence of trafficking in children.................................... 105
271.5..................... Offence of domestic trafficking in persons..................... 106
271.6..................... Domestic trafficking in persons—aggravated offence.... 107
271.7..................... Offence of domestic trafficking in children..................... 108
Subdivision BA—Organ trafficking 109
271.7A.................. Removal of organs contrary to this Subdivision............. 109
271.7B................... Offence of organ trafficking—entry into and exit from Australia 109
271.7C................... Organ trafficking—aggravated offence........................... 110
271.7D.................. Offence of domestic organ trafficking............................ 111
271.7E................... Domestic organ trafficking—aggravated offence............ 111
Subdivision BB—Harbouring a victim 112
271.7F................... Harbouring a victim........................................................ 112
271.7G.................. Harbouring a victim—aggravated offence...................... 113
Subdivision D—Offences against Division 271: general 114
271.10................... Jurisdictional requirements—offences other than domestic trafficking in persons or organs 114
271.11................... Jurisdictional requirements—offences of domestic trafficking in persons or organs 114
271.11A................ Offences against Division 271—relevant evidence......... 115
271.11B................. Offences against Division 271—no defence of victim consent or acquiescence 116
271.12................... Offences against Division 271—other laws not excluded 116
271.13................... Double jeopardy............................................................. 117
Division 271A—Overseas travel by certain registered offenders 118
271A.1.................. Restrictions on overseas travel by certain registered offenders 118
Division 272—Child sex offences outside Australia 119
Subdivision A—Preliminary 119
272.1..................... Definitions...................................................................... 119
272.2..................... When conduct causes a person to engage in sexual intercourse or other sexual activity 119
272.3..................... Meaning of position of trust or authority....................... 119
272.4..................... Meaning of sexual intercourse....................................... 120
272.5..................... Meaning of offence against this Division and extension of criminal responsibility 121
272.6..................... Who can be prosecuted for an offence committed outside Australia 122
272.7..................... Saving of other laws....................................................... 122
Subdivision B—Sexual offences against children outside Australia 123
272.8..................... Sexual intercourse with child outside Australia.............. 123
272.9..................... Sexual activity (other than sexual intercourse) with child outside Australia 124
272.10................... Aggravated offence—sexual intercourse or other sexual activity with child outside Australia 125
272.11................... Persistent sexual abuse of child outside Australia........... 127
272.12................... Sexual intercourse with young person outside Australia—defendant in position of trust or authority 129
272.13................... Sexual activity (other than sexual intercourse) with young person outside Australia—defendant in position of trust or authority............................................................. 130
272.14................... Procuring child to engage in sexual activity outside Australia 131
272.15................... “Grooming” child to engage in sexual activity outside Australia 132
272.15A................ “Grooming” person to make it easier to engage in sexual activity with a child outside Australia 133
272.16................... Defence based on belief about age.................................. 134
272.17................... Defence based on valid and genuine marriage................ 135
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia 136
272.18................... Benefiting from offence against this Division................. 136
272.19................... Encouraging offence against this Division...................... 136
272.20................... Preparing for or planning offence against this Division.. 137
Subdivision E—Other rules about conduct of trials 138
272.27................... Evidence relating to a person’s age................................. 138
272.28................... Alternative verdicts......................................................... 139
272.29................... Double jeopardy............................................................. 140
272.30................... Sentencing...................................................................... 140
272.31................... Consent to commencement of proceedings where defendant under 18 141
Division 273—Offences involving child abuse material outside Australia 142
Subdivision A—Preliminary 142
273.1..................... Definitions...................................................................... 142
273.2..................... Who can be prosecuted for an offence committed outside Australia 143
273.2A.................. Consent to commencement of proceedings where defendant under 18 143
273.3..................... Double jeopardy............................................................. 143
273.4..................... Saving of other laws....................................................... 143
Subdivision B—Offences committed overseas involving child abuse material 144
273.6..................... Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia 144
273.7..................... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 144
273.8..................... Alternative verdict if aggravated offence not proven....... 145
Subdivision C—Defences 146
273.9..................... Defences to offences against this Division..................... 146
Division 273A—Possession of child‑like sex dolls etc. 148
273A.1.................. Possession of child‑like sex dolls etc.............................. 148
273A.2.................. Defences......................................................................... 148
273A.3.................. Saving of other laws....................................................... 149
Division 273B—Protection of children 150
Subdivision A—Preliminary 150
273B.1................... Definitions...................................................................... 150
273B.2................... Geographical jurisdiction................................................ 151
273B.3................... Double jeopardy............................................................. 152
Subdivision B—Offences relating to the protection of children 152
273B.4................... Failing to protect child at risk of child sexual abuse offence 152
273B.5................... Failing to report child sexual abuse offence.................... 153
Subdivision C—Rules about conduct of trials 156
273B.6................... Consent to commence proceedings................................. 156
273B.7................... Evidence relating to a person’s age................................. 156
Subdivision D—Relationship with other laws 156
273B.8................... Relationship with State and Territory laws..................... 156
273B.9................... Protection from other laws etc. for complying with this Division 157
Division 274—Torture 160
274.1..................... Definitions...................................................................... 160
274.2..................... Torture............................................................................ 160
274.3..................... Prosecutions................................................................... 161
274.4..................... No defence of exceptional circumstances or superior orders 162
274.5..................... Jurisdiction of State/Territory courts preserved.............. 162
274.6..................... Concurrent operation intended........................................ 163
274.7..................... Double jeopardy............................................................. 163
Division 279—Video link evidence 164
279.1..................... Proceedings to which this Division applies.................... 164
279.2..................... When court may take evidence by video link.................. 164
279.3..................... Technical requirements for video link............................. 164
279.4..................... Application of laws about witnesses............................... 165
279.5..................... Administration of oaths and affirmations........................ 165
279.6..................... Expenses......................................................................... 166
279.7..................... Other laws about foreign evidence not affected.............. 166
Chapter 9—Dangers to the community 167
Part 9.1—Serious drug offences 167
Division 300—Preliminary 167
300.1..................... Purpose........................................................................... 167
300.2..................... Definitions...................................................................... 167
300.3..................... Geographical jurisdiction................................................ 170
300.4..................... Concurrent operation intended........................................ 170
300.5..................... Particular identity of drugs, plants and precursors.......... 171
300.6..................... Recklessness as to nature of substance or plant sufficient for offence of attempt to commit an offence against this Part........................................................................... 171
Division 301—Serious drugs and precursors 173
Subdivision A—Serious drugs and precursors: definitions 173
301.1..................... Meaning of controlled drug............................................ 173
301.2..................... Meaning of controlled plant........................................... 173
301.3..................... Meaning of controlled precursor................................... 174
301.4..................... Meaning of border controlled drug................................ 174
301.5..................... Meaning of border controlled plant............................... 175
301.6..................... Meaning of border controlled precursor....................... 175
301.7..................... Serious drugs—conditions for listing by regulation....... 176
301.8..................... Serious drug precursors—conditions for listing by regulation 176
301.9..................... Meaning of drug analogue............................................. 176
Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities 178
301.10................... Meaning of commercial quantity.................................... 178
301.11................... Meaning of marketable quantity..................................... 179
301.12................... Meaning of trafficable quantity....................................... 180
Subdivision C—Serious drugs and precursors: emergency determinations 180
301.13................... Emergency determinations—serious drugs..................... 180
301.14................... Emergency determinations—serious drug precursors..... 181
301.15................... Emergency determinations—commercial, marketable and trafficable quantities 182
301.16................... Emergency determinations—effectiveness...................... 182
301.17................... Emergency determinations—publication......................... 183
Division 302—Trafficking controlled drugs 184
302.1..................... Meaning of traffics......................................................... 184
302.2..................... Trafficking commercial quantities of controlled drugs.... 184
302.3..................... Trafficking marketable quantities of controlled drugs..... 185
302.4..................... Trafficking controlled drugs........................................... 185
302.5..................... Presumption where trafficable quantities are involved.... 185
302.6..................... Purchase of controlled drugs is not an ancillary offence. 186
Division 303—Commercial cultivation of controlled plants 187
303.1..................... Meanings of cultivate and cultivates a plant................... 187
303.2..................... Meaning of product of a plant........................................ 187
303.3..................... Meaning of cultivates a plant for a commercial purpose 187
303.4..................... Cultivating commercial quantities of controlled plants.... 188
303.5..................... Cultivating marketable quantities of controlled plants..... 188
303.6..................... Cultivating controlled plants........................................... 188
303.7..................... Presumption where trafficable quantities are involved.... 189
Division 304—Selling controlled plants 190
304.1..................... Selling commercial quantities of controlled plants.......... 190
304.2..................... Selling marketable quantities of controlled plants........... 190
304.3..................... Selling controlled plants.................................................. 190
Division 305—Commercial manufacture of controlled drugs 192
305.1..................... Meanings of manufacture and manufactures a substance 192
305.2..................... Meaning of manufactures a substance for a commercial purpose 192
305.3..................... Manufacturing commercial quantities of controlled drugs 192
305.4..................... Manufacturing marketable quantities of controlled drugs 193
305.5..................... Manufacturing controlled drugs...................................... 193
305.6..................... Presumption where trafficable quantities are involved.... 194
Division 306—Pre‑trafficking controlled precursors 195
306.1..................... Meaning of pre‑traffics................................................... 195
306.2..................... Pre‑trafficking commercial quantities of controlled precursors 195
306.3..................... Pre‑trafficking marketable quantities of controlled precursors 196
306.4..................... Pre‑trafficking controlled precursors.............................. 196
306.5..................... Presumption for pre‑trafficking controlled precursors—sale 197
306.6..................... Presumptions for pre‑trafficking controlled precursors—manufacture for drug manufacture 197
306.7..................... Presumptions for pre‑trafficking controlled precursors—manufacture for sale 198
306.8..................... Presumptions for pre‑trafficking controlled precursors—possession 199
Division 307—Import‑export offences 201
Subdivision A—Importing and exporting border controlled drugs or border controlled plants 201
307.1..................... Importing and exporting commercial quantities of border controlled drugs or border controlled plants 201
307.2..................... Importing and exporting marketable quantities of border controlled drugs or border controlled plants 201
307.3..................... Importing and exporting border controlled drugs or border controlled plants 202
307.4..................... Importing and exporting border controlled drugs or border controlled plants—no defence relating to lack of commercial intent............................................................ 202
Subdivision B—Possessing unlawfully imported border controlled drugs or border controlled plants 203
307.5..................... Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants........................................................................................ 203
307.6..................... Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants........................................................................................ 203
307.7..................... Possessing unlawfully imported border controlled drugs or border controlled plants 204
Subdivision C—Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported 205
307.8..................... Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................... 205
307.9..................... Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................... 205
307.10................... Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported........................................................ 206
Subdivision D—Importing and exporting border controlled precursors 207
307.11................... Importing and exporting commercial quantities of border controlled precursors 207
307.12................... Importing and exporting marketable quantities of border controlled precursors 207
307.13................... Importing and exporting border controlled precursors.... 207
Division 308—Possession offences 209
308.1..................... Possessing controlled drugs........................................... 209
308.2..................... Possessing controlled precursors.................................... 210
308.3..................... Possessing plant material, equipment or instructions for commercial cultivation of controlled plants 210
308.4..................... Possessing substance, equipment or instructions for commercial manufacture of controlled drugs 211
Division 309—Drug offences involving children 212
309.1..................... Children not criminally responsible for offences against this Division 212
309.2..................... Supplying controlled drugs to children........................... 212
309.3..................... Supplying marketable quantities of controlled drugs to children for trafficking 212
309.4..................... Supplying controlled drugs to children for trafficking.... 213
309.5..................... Presumption where trafficable quantities are involved.... 213
309.6..................... Meaning of procures an individual to traffic.................. 213
309.7..................... Procuring children for trafficking marketable quantities of controlled drugs 214
309.8..................... Procuring children for trafficking controlled drugs......... 214
309.9..................... Meaning of procures an individual to pre‑traffic........... 215
309.10................... Procuring children for pre‑trafficking marketable quantities of controlled precursors 215
309.11................... Procuring children for pre‑trafficking controlled precursors 215
309.12................... Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants.............................................................. 216
309.13................... Procuring children for importing or exporting border controlled drugs or border controlled plants 217
309.14................... Procuring children for importing or exporting marketable quantities of border controlled precursors 217
309.15................... Procuring children for importing or exporting border controlled precursors 218
Division 310—Harm and danger to children under 14 from serious drug offences 220
310.1..................... Children not criminally responsible for offences against this Division 220
310.2..................... Danger from exposure to unlawful manufacturing......... 220
310.3..................... Harm from exposure to unlawful manufacturing............ 221
310.4..................... Aggravated offences—manufacturing controlled drugs and controlled precursors 222
Division 311—Combining quantities of drugs, plants or precursors 224
Subdivision A—Combining different parcels on the same occasion 224
311.1..................... Combining different parcels on the same occasion......... 224
Subdivision B—Combining parcels from organised commercial activities 225
311.2..................... Business of trafficking controlled drugs......................... 225
311.3..................... Business of pre‑trafficking by selling controlled precursors 226
311.4..................... Business of importing or exporting border controlled drugs or border controlled plants 227
311.5..................... Business of importing or exporting border controlled precursors 227
311.6..................... Business of supplying controlled drugs to children........ 228
311.7..................... General rules—combining parcels from organised commercial activities 229
Subdivision C—Combining parcels from multiple offences 230
311.8..................... Multiple offences—trafficking controlled drugs............. 230
311.9..................... Multiple offences—cultivating controlled plants............. 230
311.10................... Multiple offences—selling controlled plants................... 231
311.11................... Multiple offences—manufacturing controlled drugs....... 231
311.12................... Multiple offences—pre‑trafficking controlled precursors 231
311.13................... Multiple offences—importing or exporting border controlled drugs or border controlled plants 232
311.14................... Multiple offences—possessing unlawfully imported border controlled drugs or border controlled plants........................................................................................ 232
311.15................... Multiple offences—possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported.................................... 233
311.16................... Multiple offences—importing or exporting border controlled precursors 233
311.17................... Multiple offences—supplying controlled drugs to children for trafficking 234
311.18................... Multiple offences—procuring children for trafficking controlled drugs 234
311.19................... Multiple offences—procuring children for pre‑trafficking controlled precursors 235
311.20................... Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants.............................................................................. 235
311.21................... Multiple offences—procuring children for importing or exporting border controlled precursors 236
311.22................... General rules—combining parcels from multiple offences 237
Division 312—Working out quantities of drugs, plants or precursors 238
312.1..................... Working out quantities of drugs and precursors in mixtures 238
312.2..................... Working out quantities where different kinds of drugs, plants or precursors are involved 239
Division 313—Defences and alternative verdicts 242
313.1..................... Defence—conduct justified or excused by or under a law of a State or Territory 242
313.2..................... Defence—reasonable belief that conduct is justified or excused by or under a law 242
313.3..................... Alternative verdict—offence not proved......................... 242
313.4..................... Alternative verdict—mistake as to quantity of drug, plant or precursor 243
313.5..................... Alternative verdict—mistake as to identity of drug, plant or precursor 244
Part 9.2—Psychoactive substances 245
Division 320—Psychoactive substances 245
320.1..................... Definitions...................................................................... 245
320.2..................... Importing psychoactive substances................................. 246
320.3..................... Importing substances represented to be serious drug alternatives 248
Part 9.4—Dangerous weapons 251
Division 360—Cross‑border firearms trafficking 251
360.1..................... Disposal and acquisition of a firearm or firearm part...... 251
360.2..................... Cross‑border offence of disposal or acquisition of a firearm or firearm part 251
360.3..................... Taking or sending a firearm or firearm part across borders 254
360.3A.................. Minimum penalties......................................................... 256
360.3B................... Double jeopardy and alternative verdicts........................ 257
360.4..................... Concurrent operation intended........................................ 258
Division 361—International firearms trafficking 260
361.1..................... Definitions...................................................................... 260
361.2..................... Trafficking prohibited firearms or firearm parts into Australia 261
361.3..................... Trafficking prohibited firearms or firearm parts out of Australia 262
361.4..................... Defence—reasonable belief that conduct is justified or excused by or under a law 264
361.5..................... Minimum penalties......................................................... 264
361.6..................... Double jeopardy and alternative verdicts........................ 265
Part 9.5—Identity crime 268
Division 370—Preliminary 268
370.1..................... Definitions...................................................................... 268
370.2..................... Definition of foreign indictable offence........................... 269
370.3..................... Concurrent operation intended........................................ 269
Division 372—Identity fraud offences 270
372.1..................... Dealing in identification information............................... 270
372.1A.................. Dealing in identification information that involves use of a carriage service 271
372.2..................... Possession of identification information......................... 273
372.3..................... Possession of equipment used to make identification documentation 273
372.4..................... Extended geographical jurisdiction—category A............ 274
372.5..................... Alternative verdict........................................................... 274
372.6..................... Attempt........................................................................... 274
Division 375—Victims’ certificates 275
375.1..................... Certificate may be issued by magistrate in relation to victim of identity crime 275
375.2..................... Content of certificate....................................................... 276
375.3..................... Relation to civil and criminal proceedings....................... 276
375.4..................... Power conferred on magistrate personally...................... 276
Division 376—False identity and air travel 277
376.1..................... Definitions for Division 376........................................... 277
376.2..................... False identification information—at constitutional airports 277
376.3..................... False identification information—air passenger tickets obtained using a carriage service 278
376.4..................... False identification information—air passenger tickets for constitutional flights 279
376.5..................... False identification information—extended jurisdiction (Category D) 280
Part 9.6—Contamination of goods 281
380.1..................... Definitions...................................................................... 281
380.2..................... Contaminating goods...................................................... 281
380.3..................... Threatening to contaminate goods................................... 285
380.4..................... Making false statements about contamination of goods.. 288
380.5..................... Extended geographical jurisdiction—category D............ 292
Part 9.9—Criminal associations and organisations 293
Division 390—Criminal associations and organisations 293
Subdivision A—Definitions 293
390.1..................... Definitions...................................................................... 293
390.2..................... State offences that have a federal aspect.......................... 295
Subdivision B—Offences 298
390.3..................... Associating in support of serious organised criminal activity 298
390.4..................... Supporting a criminal organisation................................. 300
390.5..................... Committing an offence for the benefit of, or at the direction of, a criminal organisation 301
390.6..................... Directing activities of a criminal organisation................. 303
390.7..................... Extended geographical jurisdiction—category C............ 305
Chapter 10—National infrastructure 306
Part 10.2—Money laundering 306
Division 400—Money laundering 306
400.1..................... Definitions...................................................................... 306
400.2..................... Definition of deals with money or other property.......... 309
400.2AA............... Effective control of money or property........................... 310
400.2A.................. Application of offences relating to possible instruments of crime 311
400.2B................... Proceeds of crime etc.—money or property worth $10,000,000 or more 312
400.3..................... Proceeds of crime etc.—money or property worth $1,000,000 or more 318
400.4..................... Proceeds of crime etc.—money or property worth $100,000 or more 324
400.5..................... Proceeds of crime etc.—money or property worth $50,000 or more 330
400.6..................... Proceeds of crime etc.—money or property worth $10,000 or more 331
400.7..................... Proceeds of crime etc.—money or property worth $1,000 or more 332
400.8..................... Proceeds of crime etc.—money or property of any value 334
400.9..................... Dealing with property reasonably suspected of being proceeds of crime etc. 335
400.10................... Mistake of fact as to the value of money or property...... 337
400.10A................ Effect of money or property being provided as part of a controlled operation—proceeds of indictable crime........................................................................................ 339
400.10B................. Effect of money or property being provided as part of a controlled operation—proceeds of general crime........................................................................................ 340
400.11................... Proof of certain matters relating to kinds of offences not required 340
400.12................... Combining several contraventions in a single charge...... 341
400.13................... Proof of other offences is not required........................... 341
400.14................... Alternative verdicts......................................................... 342
400.14A................ Recklessness as to nature of money or property sufficient for offence of attempt to commit an offence against certain provisions of this Part......................................... 342
400.15................... Geographical jurisdiction................................................ 343
400.16................... Saving of other laws....................................................... 347
Part 10.5—Postal services 348
Division 470—Preliminary 348
470.1..................... Definitions...................................................................... 348
470.2..................... Dishonesty...................................................................... 350
470.3..................... Determination of dishonesty to be a matter for the trier of fact 350
470.4..................... Meaning of expressions used in Subdivisions B and C of Division 471 350
Division 471—Postal offences 352
Subdivision A—General postal offences 352
471.1..................... Theft of mail‑receptacles, articles or postal messages..... 352
471.2..................... Receiving stolen mail‑receptacles, articles or postal messages 353
471.3..................... Taking or concealing of mail‑receptacles, articles or postal messages 355
471.4..................... Dishonest removal of postage stamps or postmarks....... 355
471.5..................... Dishonest use of previously used, defaced or obliterated stamps 355
471.6..................... Damaging or destroying mail‑receptacles, articles or postal messages 356
471.7..................... Tampering with mail‑receptacles..................................... 357
471.8..................... Dishonestly obtaining delivery of articles....................... 357
471.9..................... Geographical jurisdiction................................................ 357
471.10................... Hoaxes—explosives and dangerous substances............. 357
471.11................... Using a postal or similar service to make a threat........... 358
471.12................... Using a postal or similar service to menace, harass or cause offence 359
471.13................... Causing a dangerous article to be carried by a postal or similar service 359
471.14................... Geographical jurisdiction................................................ 360
471.15................... Causing an explosive, or a dangerous or harmful substance, to be carried by post 361
Subdivision B—Offences relating to use of postal or similar service for child abuse material 361
471.19................... Using a postal or similar service for child abuse material 361
471.20................... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service................................................................. 362
471.21................... Defences in respect of child abuse material..................... 362
471.22................... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 363
471.23................... Alternative verdict if aggravated offence not proven....... 364
Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16 365
471.24................... Using a postal or similar service to procure persons under 16 365
471.25................... Using a postal or similar service to “groom” persons under 16 366
471.25A................ Using a postal or similar service to “groom” another person to make it easier to procure persons under 16........................................................................................ 367
471.26................... Using a postal or similar service to send indecent material to person under 16 368
471.27................... Age‑related provisions relating to offences against this Subdivision 369
471.28................... Other provisions relating to offences against this Subdivision 370
471.29................... Defences to offences against this Subdivision................ 371
471.29A................ Sentencing...................................................................... 372
Subdivision D—Miscellaneous 372
471.30................... Geographical jurisdiction................................................ 372
471.31................... Definition of carry by post does not apply..................... 373
Division 472—Miscellaneous 374
472.1..................... Saving of other laws....................................................... 374
472.2..................... Interpretation of other laws............................................. 374
Part 10.6—Telecommunications Services 375
Division 473—Preliminary 375
473.1..................... Definitions...................................................................... 375
473.2..................... Possession or control of data or material in the form of data 385
473.3..................... Producing, supplying or obtaining data or material in the form of data 386
473.4..................... Determining whether material is offensive...................... 386
473.5..................... Use of a carriage service................................................. 387
Division 474—Telecommunications offences 388
Subdivision A—Dishonesty with respect to carriage services 388
474.1..................... Dishonesty...................................................................... 388
474.2..................... General dishonesty with respect to a carriage service provider 388
Subdivision B—Interference with telecommunications 389
474.3..................... Person acting for a carrier or carriage service provider... 389
474.4..................... Interception devices........................................................ 389
474.5..................... Wrongful delivery of communications............................ 390
474.6..................... Interference with facilities............................................... 391
474.7..................... Modification etc. of a telecommunications device identifier 392
474.8..................... Possession or control of data or a device with intent to modify a telecommunications device identifier 393
474.9..................... Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier.......................................................................... 395
474.10................... Copying subscription‑specific secure data...................... 396
474.11................... Possession or control of data or a device with intent to copy an account identifier 397
474.12................... Producing, supplying or obtaining data or a device with intent to copy an account identifier 399
Subdivision C—General offences relating to use of telecommunications 400
474.14................... Using a telecommunications network with intention to commit a serious offence 400
474.15................... Using a carriage service to make a threat........................ 401
474.16................... Using a carriage service for a hoax threat....................... 402
474.17................... Using a carriage service to menace, harass or cause offence 402
474.17A................ Aggravated offences involving private sexual material—using a carriage service to menace, harass or cause offence............................................................................ 403
474.17B................. Alternative verdict if aggravated offence not proven....... 406
474.18................... Improper use of emergency call service.......................... 406
Subdivision D—Offences relating to use of carriage service for child abuse material 407
474.22................... Using a carriage service for child abuse material............ 407
474.22A................ Possessing or controlling child abuse material obtained or accessed using a carriage service 408
474.23................... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service............................................................................. 408
474.23A................ Conduct for the purposes of electronic service used for child abuse material 409
474.24................... Defences in respect of child abuse material..................... 410
474.24A................ Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 412
474.24B................. Alternative verdict if aggravated offence not proven....... 413
474.24C................. Consent to commencement of proceedings where defendant under 18 413
Subdivision E—Offence relating to obligations of internet service providers and internet content hosts 414
474.25................... Obligations of internet service providers and internet content hosts 414
Subdivision F—Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16 414
474.25A................ Using a carriage service for sexual activity with person under 16 years of age 414
474.25B................. Aggravated offence—using a carriage service for sexual activity with person under 16 years of age 416
474.25C................. Using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16.................................... 417
474.26................... Using a carriage service to procure persons under 16 years of age 417
474.27................... Using a carriage service to “groom” persons under 16 years of age 419
474.27AA............. Using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age........................................................................................ 420
474.27A................ Using a carriage service to transmit indecent communication to person under 16 years of age 421
474.28................... Provisions relating to offences against this Subdivision. 422
474.29................... Defences to offences against this Subdivision................ 424
474.29AA............. Sentencing...................................................................... 426
Subdivision G—Offences relating to use of carriage service for suicide related material 426
474.29A................ Using a carriage service for suicide related material........ 426
474.29B................. Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service............................................................................. 428
Subdivision H—Offences relating to use of carriage service for sharing of abhorrent violent material 429
474.30................... Definitions...................................................................... 429
474.31................... Abhorrent violent material.............................................. 430
474.32................... Abhorrent violent conduct.............................................. 431
474.33................... Notification obligations of internet service providers, content service providers and hosting service providers........................................................................................ 433
474.34................... Removing, or ceasing to host, abhorrent violent material 433
474.35................... Notice issued by eSafety Commissioner in relation to a content service—presumptions 436
474.36................... Notice issued by eSafety Commissioner in relation to a hosting service—presumptions 437
474.37................... Defences in respect of abhorrent violent material............ 439
474.38................... Implied freedom of political communication................... 443
474.39................... Provider of content service............................................. 443
474.40................... Service of copies of notices by electronic means............ 443
474.41................... Giving a copy of a notice to a contact person etc............ 444
474.42................... Attorney‑General’s consent required for prosecution..... 445
474.43................... Compensation for acquisition of property....................... 445
474.44................... This Subdivision does not limit Part 9 of the Online Safety Act 2021 446
474.45................... Review of this Subdivision............................................. 446
Subdivision J—Offences relating to use of carriage service for inciting trespass, property damage, or theft, on agricultural land 446
474.46................... Using a carriage service for inciting trespass on agricultural land 446
474.47................... Using a carriage service for inciting property damage, or theft, on agricultural land 448
474.48................... Implied freedom of political communication................... 449
Division 475—Miscellaneous 450
475.1A.................. Defences for NRS employees and emergency call persons 450
475.1B................... Provisions relating to element of offence that particular conduct was engaged in using a carriage service........................................................................................ 450
475.1..................... Saving of other laws....................................................... 451
475.2..................... Geographical jurisdiction................................................ 451
Part 10.7—Computer offences 452
Division 476—Preliminary 452
476.1..................... Definitions...................................................................... 452
476.2..................... Meaning of unauthorised access, modification or impairment 453
476.3..................... Geographical jurisdiction................................................ 454
476.4..................... Saving of other laws....................................................... 454
476.6..................... Liability for certain acts—ASIS, ASD or AGO............. 454
Division 477—Serious computer offences 458
477.1..................... Unauthorised access, modification or impairment with intent to commit a serious offence 458
477.2..................... Unauthorised modification of data to cause impairment.. 459
477.3..................... Unauthorised impairment of electronic communication.. 459
Division 478—Other computer offences 461
478.1..................... Unauthorised access to, or modification of, restricted data 461
478.2..................... Unauthorised impairment of data held on a computer disk etc. 461
478.3..................... Possession or control of data with intent to commit a computer offence 461
478.4..................... Producing, supplying or obtaining data with intent to commit a computer offence 462
Part 10.8—Financial information offences 464
480.1..................... Definitions...................................................................... 464
480.2..................... Dishonesty...................................................................... 465
480.3..................... Constitutional application of this Part............................. 465
480.4..................... Dishonestly obtaining or dealing in personal financial information 465
480.5..................... Possession or control of thing with intent to dishonestly obtain or deal in personal financial information........................................................................................ 465
480.6..................... Importation of thing with intent to dishonestly obtain or deal in personal financial information 466
Part 10.9—Accounting records 467
Division 490—False dealing with accounting documents 467
490.1..................... Intentional false dealing with accounting documents...... 467
490.2..................... Reckless false dealing with accounting documents......... 469
490.3..................... Meaning of annual turnover........................................... 470
490.4..................... Related bodies corporate................................................. 471
490.5..................... Proof of certain matters unnecessary.............................. 471
490.6..................... Consent to commencement of proceedings..................... 471
490.7..................... Saving of other laws....................................................... 472
Dictionary 473
Endnotes 489
Endnote 1—About the endnotes 489
Endnote 2—Abbreviation key 491
Endnote 3—Legislation history 492
Endnote 4—Amendment history 512
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, 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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(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.
(1A) Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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.
(3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(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.
(1A) Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(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.
(2A) Subsection (2) does not apply if:
(a) the serious endangerment of the physical or mental health, or integrity, of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3).
(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.
(4) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(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.
(1A) Subsection (1) does not apply if:
(a) the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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.
(3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
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 (whether or not the person or persons are alive); 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) 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 person or persons who:
(a) are hors de combat; or
(b) are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or
(c) are dead.
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 hygieni