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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Criminal Code Amendment (War
Crimes) Bill 2016
No. , 2016
(Attorney-General)
A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes
No. , 2016
Criminal Code Amendment (War Crimes) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to war crimes
3
Part 1--Members of organised armed groups
3
Criminal Code Act 1995
3
Part 2--Proportionality in non-international armed conflict
5
Criminal Code Act 1995
5
Part 3--Minor technical amendment
7
Criminal Code Act 1995
7
Part 4--Application of amendments
8
No. , 2016
Criminal Code Amendment (War Crimes) Bill 2016
1
A Bill for an Act to amend the Criminal Code Act
1
1995, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Criminal Code Amendment (War Crimes) Act 2016.
5
2 Commencement
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
2
Criminal Code Amendment (War Crimes) Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments relating to war crimes Schedule 1
Members of organised armed groups Part 1
No. , 2016
Criminal Code Amendment (War Crimes) Bill 2016
3
Schedule 1--Amendments relating to war
1
crimes
2
Part 1--Members of organised armed groups
3
Criminal Code Act 1995
4
1 Paragraphs 268.70(1)(b) and (c) of the Criminal Code
5
Repeal the paragraphs, substitute:
6
(b) the person or persons are neither taking an active part in the
7
hostilities nor are members of an organised armed group; and
8
(c) the perpetrator knows of, or is reckless as to, the factual
9
circumstances establishing that the person or persons are
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neither taking an active part in the hostilities nor are
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members of an organised armed group; and
12
2 At the end of section 268.70 of the Criminal Code
13
Add:
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(3) For the purposes of this section, the expression members of an
15
organised armed group does not include members of an organised
16
armed group who are hors de combat.
17
3 Paragraphs 268.71(1)(d) and (e) and (2)(d) and (e) of the
18
Criminal Code
19
Repeal the paragraphs, substitute:
20
(d) the person or persons are neither taking an active part in the
21
hostilities nor are members of an organised armed group; and
22
(e) the perpetrator knows of, or is reckless as to, the factual
23
circumstances establishing that the person or persons are
24
neither taking an active part in the hostilities nor are
25
members of an organised armed group; and
26
4 At the end of section 268.71 of the Criminal Code
27
Add:
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(4) For the purposes of this section, the expression members of an
29
organised armed group does not include members of an organised
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armed group who are hors de combat.
31
Schedule 1 Amendments relating to war crimes
Part 1 Members of organised armed groups
4
Criminal Code Amendment (War Crimes) Bill 2016
No. , 2016
5 Paragraphs 268.72(1)(b) and (c) of the Criminal Code
1
Repeal the paragraphs, substitute:
2
(b) the person or persons are neither taking an active part in the
3
hostilities nor are members of an organised armed group; and
4
(c) the perpetrator knows of, or is reckless as to, the factual
5
circumstances establishing that the person or persons are
6
neither taking an active part in the hostilities nor are
7
members of an organised armed group; and
8
6 At the end of section 268.72 of the Criminal Code
9
Add:
10
(3) For the purposes of this section, the expression members of an
11
organised armed group does not include members of an organised
12
armed group who are hors de combat.
13
7 At the end of Subdivision K of Division 268 of Chapter 8 of
14
the Criminal Code
15
Add:
16
268.125 Meaning of civilian
17
In this Division, the expression civilian does not include a person
18
who is a member of an organised armed group.
19
Amendments relating to war crimes Schedule 1
Proportionality in non-international armed conflict Part 2
No. , 2016
Criminal Code Amendment (War Crimes) Bill 2016
5
Part 2--Proportionality in non-international armed
1
conflict
2
Criminal Code Act 1995
3
8 After subsection 268.70(1) of the Criminal Code
4
Insert:
5
(1A) Subsection (1) does not apply if:
6
(a) the death of the person or persons occurs in the course of, or
7
as a result of, an attack on a military objective; and
8
(b) at the time the attack was launched:
9
(i) the perpetrator did not expect that the attack would
10
result in the incidental death of, or injury to, civilians
11
that would have been excessive in relation to the
12
concrete and direct military advantage anticipated; and
13
(ii) it was reasonable in all the circumstances that the
14
perpetrator did not have such an expectation.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (1A). See subsection 13.3(3).
17
9 After subsection 268.71(1) of the Criminal Code
18
Insert:
19
(1A) Subsection (1) does not apply if:
20
(a) the death of the person or persons occurs in the course of, or
21
as a result of, an attack on a military objective; and
22
(b) at the time the attack was launched:
23
(i) the perpetrator did not expect that the attack would
24
result in the incidental death of, or injury to, civilians
25
that would have been excessive in relation to the
26
concrete and direct military advantage anticipated; and
27
(ii) it was reasonable in all the circumstances that the
28
perpetrator did not have such an expectation.
29
Note:
A defendant bears an evidential burden in relation to the matter in
30
subsection (1A). See subsection 13.3(3).
31
Schedule 1 Amendments relating to war crimes
Part 2 Proportionality in non-international armed conflict
6
Criminal Code Amendment (War Crimes) Bill 2016
No. , 2016
10 After subsection 268.71(2) of the Criminal Code
1
Insert:
2
(2A) Subsection (2) does not apply if:
3
(a) the serious endangerment of the physical or mental health, or
4
integrity, of the person or persons occurs in the course of, or
5
as a result of, an attack on a military objective; and
6
(b) at the time the attack was launched:
7
(i) the perpetrator did not expect that the attack would
8
result in the incidental death of, or injury to, civilians
9
that would have been excessive in relation to the
10
concrete and direct military advantage anticipated; and
11
(ii) it was reasonable in all the circumstances that the
12
perpetrator did not have such an expectation.
13
Note:
A defendant bears an evidential burden in relation to the matter in
14
subsection (2A). See subsection 13.3(3).
15
11 After subsection 268.72(1) of the Criminal Code
16
Insert:
17
(1A) Subsection (1) does not apply if:
18
(a) the infliction of the severe physical or mental pain or
19
suffering on the person or persons occurs in the course of, or
20
as a result of, an attack on a military objective; and
21
(b) at the time the attack was launched:
22
(i) the perpetrator did not expect that the attack would
23
result in the incidental death of, or injury to, civilians
24
that would have been excessive in relation to the
25
concrete and direct military advantage anticipated; and
26
(ii) it was reasonable in all the circumstances that the
27
perpetrator did not have such an expectation.
28
Note:
A defendant bears an evidential burden in relation to the matter in
29
subsection (1A). See subsection 13.3(3).
30
Amendments relating to war crimes Schedule 1
Minor technical amendment Part 3
No. , 2016
Criminal Code Amendment (War Crimes) Bill 2016
7
Part 3--Minor technical amendment
1
Criminal Code Act 1995
2
12 Paragraph 268.65(1)(a) of the Criminal Code
3
Omit "military,".
4
Schedule 1 Amendments relating to war crimes
Part 4 Application of amendments
8
Criminal Code Amendment (War Crimes) Bill 2016
No. , 2016
Part 4--Application of amendments
1
13 Application of amendments made by Part 1
2
The amendments made by Part 1 of this Schedule apply to conduct
3
engaged in on or after the commencement of this item.
4
14 Application of amendments made by Parts 2 and 3
5
The amendments made by Parts 2 and 3 of this Schedule apply to
6
conduct engaged in before, on or after the commencement of this item.
7