Australia

Prepared by the Office of Parliamentary Counsel, Canberra

Criminal Code Act 1995

No. 12, 1995

Compilation No. 113

Compilation date: 1 July 2017

Includes amendments up to: Act No. 73, 2017

Registered: 17 July 2017

This compilation is in 2 volumes

Volume 1: sections 1–5

Schedule (sections 1.1–261.3)

Volume 2: Schedule (sections 268.1–490.7)

Schedule (Dictionary)

Endnotes

Each volume has its own contents

This compilation includes a commenced amendment made by Act No. 86,

2016. The amendment made by Act No. 73, 2017 has not commenced but is

noted in the endnotes

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About this compilation

This compilation

This is a compilation of the Criminal Code Act 1995 that shows the text of the

law as amended and in force on 1 July 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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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

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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

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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

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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

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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 conditions 85

Subdivision A—Preliminary 85

270.1A Definitions for Division 270............................................85

Subdivision B—Slavery 86

270.1 Definition of slavery........................................................86

270.2 Slavery is unlawful..........................................................86

270.3 Slavery offences ..............................................................86

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270.3A Slavery offences—geographical jurisdiction...................88

270.3B Prosecutions ....................................................................88

Subdivision C—Slavery-like conditions 88

270.4 Definition of servitude.....................................................88

270.5 Servitude offences ...........................................................89

270.6 Definition of forced labour .............................................90

270.6A Forced labour offences ....................................................91

270.7 Deceptive recruiting for labour or services......................91

270.7A Definition of forced marriage .........................................92

270.7B Forced marriage offences ................................................93

270.8 Slavery-like offences—aggravated offences ...................94

270.9 Slavery-like offences—jurisdictional requirement ..........95

270.10 Slavery-like offences—relevant evidence .......................95

Subdivision D—Offences against Division 270: general 96

270.11 Offences against Division 270—no defence of

victim consent or acquiescence .......................................96

270.12 Offences against Division 270—other laws not

excluded ..........................................................................96

270.13 Offences against Division 270—double jeopardy ...........97

Division 271—Trafficking in persons and debt bondage 98

Subdivision A—Definitions 98

271.1 Definitions.......................................................................98

271.1A Definition of exploitation ................................................98

Subdivision B—Offences relating to trafficking in persons 99

271.2 Offence of trafficking in persons.....................................99

271.3 Trafficking in persons—aggravated offence .................102

271.4 Offence of trafficking in children..................................103

271.5 Offence of domestic trafficking in persons....................104

271.6 Domestic trafficking in persons—aggravated

offence...........................................................................105

271.7 Offence of domestic trafficking in children...................106

Subdivision BA—Organ trafficking 107

271.7A Removal of organs contrary to this Subdivision............107

271.7B Offence of organ trafficking—entry into and exit

from Australia ...............................................................107

271.7C Organ trafficking—aggravated offence .........................108

271.7D Offence of domestic organ trafficking...........................109

271.7E Domestic organ trafficking—aggravated offence..........109

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Subdivision BB—Harbouring a victim 110

271.7F Harbouring a victim.......................................................110

271.7G Harbouring a victim—aggravated offence ....................111

Subdivision C—Offences relating to debt bondage 112

271.8 Offence of debt bondage ...............................................112

271.9 Debt bondage—aggravated offence ..............................112

Subdivision D—Offences against Division 271: general 113

271.10 Jurisdictional requirements—offences other than

domestic trafficking in persons or organs......................113

271.11 Jurisdictional requirements—offences of domestic

trafficking in persons or organs .....................................113

271.11A Offences against Division 271—relevant evidence .......114

271.11B Offences against Division 271—no defence of

victim consent or acquiescence .....................................115

271.12 Offences against Division 271—other laws not

excluded ........................................................................115

271.13 Double jeopardy ............................................................116

Division 272—Child sex offences outside Australia 117

Subdivision A—Preliminary 117

272.1 Definitions.....................................................................117

272.2 When conduct causes a person to engage in sexual

intercourse or other sexual activity................................117

272.3 Meaning of position of trust or authority ......................117

272.4 Meaning of sexual intercourse ......................................118

272.5 Meaning of offence against this Division and

extension of criminal responsibility...............................119

272.6 Who can be prosecuted for an offence committed

outside Australia............................................................120

272.7 Saving of other laws ......................................................120

Subdivision B—Sexual offences against children outside Australia 121

272.8 Sexual intercourse with child outside Australia.............121

272.9 Sexual activity (other than sexual intercourse) with

child outside Australia...................................................122

272.10 Aggravated offence—child with mental

impairment or under care, supervision or authority

of defendant...................................................................123

272.11 Persistent sexual abuse of child outside Australia .........124

272.12 Sexual intercourse with young person outside

Australia—defendant in position of trust or

authority ........................................................................127

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272.13 Sexual activity (other than sexual intercourse) with

young person outside Australia—defendant in

position of trust or authority ..........................................128

272.14 Procuring child to engage in sexual activity

outside Australia............................................................129

272.15 “Grooming” child to engage in sexual activity

outside Australia............................................................130

272.16 Defence based on belief about age ................................131

272.17 Defence based on valid and genuine marriage ..............132

Subdivision C—Offences of benefiting from, encouraging or

preparing for sexual offences against children

outside Australia 133

272.18 Benefiting from offence against this Division ...............133

272.19 Encouraging offence against this Division ....................134

272.20 Preparing for or planning offence against this

Division.........................................................................134

Subdivision E—Other rules about conduct of trials 135

272.27 Evidence relating to a person’s age ...............................135

272.28 Alternative verdicts .......................................................136

272.29 Double jeopardy ............................................................137

272.30 Sentencing.....................................................................137

272.31 Consent to commencement of proceedings where

defendant under 18 ........................................................137

Division 273—Offences involving child pornography material or

child abuse material outside Australia 139

Subdivision A—Preliminary 139

273.1 Definitions.....................................................................139

273.2 Who can be prosecuted for an offence committed

outside Australia............................................................140

273.2A Consent to commencement of proceedings where

defendant under 18 ........................................................140

273.3 Double jeopardy ............................................................140

273.4 Saving of other laws ......................................................140

Subdivision B—Offences committed overseas involving child

pornography material or child abuse material 141

273.5 Possessing, controlling, producing, distributing or

obtaining child pornography material outside

Australia ........................................................................141

273.6 Possessing, controlling, producing, distributing or

obtaining child abuse material outside Australia ...........141

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273.7 Aggravated offence—offence involving conduct

on 3 or more occasions and 2 or more people ...............142

273.8 Alternative verdict if aggravated offence not

proven............................................................................143

Subdivision C—Defences 143

273.9 Defences to offences against this Division ....................143

Division 274—Torture 146

274.1 Definitions.....................................................................146

274.2 Torture...........................................................................146

274.3 Prosecutions ..................................................................147

274.4 No defence of exceptional circumstances or

superior orders...............................................................148

274.5 Jurisdiction of State/Territory courts preserved.............148

274.6 Concurrent operation intended ......................................149

274.7 Double jeopardy ............................................................149

Division 279—Video link evidence 150

279.1 Proceedings to which this Division applies ...................150

279.2 When court may take evidence by video link................150

279.3 Technical requirements for video link...........................150

279.4 Application of laws about witnesses..............................151

279.5 Administration of oaths and affirmations ......................151

279.6 Expenses........................................................................152

279.7 Other laws about foreign evidence not affected ............152

Chapter 9—Dangers to the community 153

Part 9.1—Serious drug offences 153

Division 300—Preliminary 153

300.1 Purpose..........................................................................153

300.2 Definitions.....................................................................153

300.3 Geographical jurisdiction ..............................................156

300.4 Concurrent operation intended ......................................156

300.5 Particular identity of drugs, plants and precursors.........157

300.6 Recklessness as to nature of substance or plant

sufficient for offence of attempt to commit an

offence against this Part ................................................157

Division 301—Serious drugs and precursors 159

Subdivision A—Serious drugs and precursors: definitions 159

301.1 Meaning of controlled drug...........................................159

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301.2 Meaning of controlled plant ..........................................159

301.3 Meaning of controlled precursor ..................................160

301.4 Meaning of border controlled drug ...............................160

301.5 Meaning of border controlled plant ..............................161

301.6 Meaning of border controlled precursor.......................161

301.7 Serious drugs—conditions for listing by regulation ......162

301.8 Serious drug precursors—conditions for listing by

regulation.......................................................................162

301.9 Meaning of drug analogue ............................................162

Subdivision B—Serious drugs and precursors: commercial,

marketable and trafficable quantities 164

301.10 Meaning of commercial quantity...................................164

301.11 Meaning of marketable quantity....................................165

301.12 Meaning of trafficable quantity .....................................166

Subdivision C—Serious drugs and precursors: emergency

determinations 166

301.13 Emergency determinations—serious drugs ...................166

301.14 Emergency determinations—serious drug

precursors ......................................................................167

301.15 Emergency determinations—commercial,

marketable and trafficable quantities.............................168

301.16 Emergency determinations—effectiveness....................168

301.17 Emergency determinations—publication ......................169

Division 302—Trafficking controlled drugs 170

302.1 Meaning of traffics ........................................................170

302.2 Trafficking commercial quantities of controlled

drugs..............................................................................170

302.3 Trafficking marketable quantities of controlled

drugs..............................................................................171

302.4 Trafficking controlled drugs..........................................171

302.5 Presumption where trafficable quantities are

involved.........................................................................171

302.6 Purchase of controlled drugs is not an ancillary

offence...........................................................................172

Division 303—Commercial cultivation of controlled plants 173

303.1 Meanings of cultivate and cultivates a plant .................173

303.2 Meaning of product of a plant .......................................173

303.3 Meaning of cultivates a plant for a commercial

purpose..........................................................................173

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303.4 Cultivating commercial quantities of controlled

plants .............................................................................174

303.5 Cultivating marketable quantities of controlled

plants .............................................................................174

303.6 Cultivating controlled plants .........................................174

303.7 Presumption where trafficable quantities are

involved.........................................................................175

Division 304—Selling controlled plants 176

304.1 Selling commercial quantities of controlled plants........176

304.2 Selling marketable quantities of controlled plants.........176

304.3 Selling controlled plants ................................................176

Division 305—Commercial manufacture of controlled drugs 178

305.1 Meanings of manufacture and manufactures a

substance .......................................................................178

305.2 Meaning of manufactures a substance for a

commercial purpose ......................................................178

305.3 Manufacturing commercial quantities of controlled

drugs..............................................................................178

305.4 Manufacturing marketable quantities of controlled

drugs..............................................................................179

305.5 Manufacturing controlled drugs ....................................179

305.6 Presumption where trafficable quantities are

involved.........................................................................180

Division 306—Pre-trafficking controlled precursors 181

306.1 Meaning of pre-traffics .................................................181

306.2 Pre-trafficking commercial quantities of controlled

precursors ......................................................................181

306.3 Pre-trafficking marketable quantities of controlled

precursors ......................................................................182

306.4 Pre-trafficking controlled precursors.............................182

306.5 Presumption for pre-trafficking controlled

precursors—sale ............................................................183

306.6 Presumptions for pre-trafficking controlled

precursors—manufacture for drug manufacture ............183

306.7 Presumptions for pre-trafficking controlled

precursors—manufacture for sale..................................184

306.8 Presumptions for pre-trafficking controlled

precursors—possession .................................................185

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Division 307—Import-export offences 187

Subdivision A—Importing and exporting border controlled drugs

or border controlled plants 187

307.1 Importing and exporting commercial quantities of

border controlled drugs or border controlled plants ......187

307.2 Importing and exporting marketable quantities of

border controlled drugs or border controlled plants ......187

307.3 Importing and exporting border controlled drugs

or border controlled plants.............................................188

307.4 Importing and exporting border controlled drugs

or border controlled plants—no defence relating to

lack of commercial intent ..............................................188

Subdivision B—Possessing unlawfully imported border controlled

drugs or border controlled plants 189

307.5 Possessing commercial quantities of unlawfully

imported border controlled drugs or border

controlled plants ............................................................189

307.6 Possessing marketable quantities of unlawfully

imported border controlled drugs or border

controlled plants ............................................................189

307.7 Possessing unlawfully imported border controlled

drugs or border controlled plants...................................190

Subdivision C—Possessing border controlled drugs or border

controlled plants reasonably suspected of having

been unlawfully imported 191

307.8 Possessing commercial quantities of border

controlled drugs or border controlled plants

reasonably suspected of having been unlawfully

imported ........................................................................191

307.9 Possessing marketable quantities of border

controlled drugs or border controlled plants

reasonably suspected of having been unlawfully

imported ........................................................................191

307.10 Possessing border controlled drugs or border

controlled plants reasonably suspected of having

been unlawfully imported..............................................192

Subdivision D—Importing and exporting border controlled

precursors 193

307.11 Importing and exporting commercial quantities of

border controlled precursors..........................................193

307.12 Importing and exporting marketable quantities of

border controlled precursors..........................................193

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307.13 Importing and exporting border controlled

precursors ......................................................................193

Division 308—Possession offences 195

308.1 Possessing controlled drugs...........................................195

308.2 Possessing controlled precursors ...................................196

308.3 Possessing plant material, equipment or

instructions for commercial cultivation of

controlled plants ............................................................196

308.4 Possessing substance, equipment or instructions

for commercial manufacture of controlled drugs...........197

Division 309—Drug offences involving children 198

309.1 Children not criminally responsible for offences

against this Division ......................................................198

309.2 Supplying controlled drugs to children..........................198

309.3 Supplying marketable quantities of controlled

drugs to children for trafficking.....................................198

309.4 Supplying controlled drugs to children for

trafficking......................................................................199

309.5 Presumption where trafficable quantities are

involved.........................................................................199

309.6 Meaning of procures an individual to traffic.................199

309.7 Procuring children for trafficking marketable

quantities of controlled drugs ........................................200

309.8 Procuring children for trafficking controlled drugs .......200

309.9 Meaning of procures an individual to pre-traffic ..........201

309.10 Procuring children for pre-trafficking marketable

quantities of controlled precursors ................................201

309.11 Procuring children for pre-trafficking controlled

precursors ......................................................................201

309.12 Procuring children for importing or exporting

marketable quantities of border controlled drugs or

border controlled plants.................................................202

309.13 Procuring children for importing or exporting

border controlled drugs or border controlled plants ......203

309.14 Procuring children for importing or exporting

marketable quantities of border controlled

precursors ......................................................................203

309.15 Procuring children for importing or exporting

border controlled precursors..........................................204

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Division 310—Harm and danger to children under 14 from

serious drug offences 206

310.1 Children not criminally responsible for offences

against this Division ......................................................206

310.2 Danger from exposure to unlawful manufacturing ........206

310.3 Harm from exposure to unlawful manufacturing...........207

310.4 Aggravated offences—manufacturing controlled

drugs and controlled precursors.....................................208

Division 311—Combining quantities of drugs, plants or

precursors 210

Subdivision A—Combining different parcels on the same occasion 210

311.1 Combining different parcels on the same occasion .......210

Subdivision B—Combining parcels from organised commercial

activities 211

311.2 Business of trafficking controlled drugs........................211

311.3 Business of pre-trafficking by selling controlled

precursors ......................................................................212

311.4 Business of importing or exporting border

controlled drugs or border controlled plants..................213

311.5 Business of importing or exporting border

controlled precursors .....................................................213

311.6 Business of supplying controlled drugs to children .......214

311.7 General rules—combining parcels from organised

commercial activities.....................................................215

Subdivision C—Combining parcels from multiple offences 216

311.8 Multiple offences—trafficking controlled drugs ...........216

311.9 Multiple offences—cultivating controlled plants ..........216

311.10 Multiple offences—selling controlled plants.................217

311.11 Multiple offences—manufacturing controlled

drugs..............................................................................217

311.12 Multiple offences—pre-trafficking controlled

precursors ......................................................................217

311.13 Multiple offences—importing or exporting border

controlled drugs or border controlled plants..................218

311.14 Multiple offences—possessing unlawfully

imported border controlled drugs or border

controlled plants ............................................................218

311.15 Multiple offences—possessing border controlled

drugs or border controlled plants reasonably

suspected of having been unlawfully imported .............219

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311.16 Multiple offences—importing or exporting border

controlled precursors .....................................................219

311.17 Multiple offences—supplying controlled drugs to

children for trafficking ..................................................220

311.18 Multiple offences—procuring children for

trafficking controlled drugs ...........................................220

311.19 Multiple offences—procuring children for

pre-trafficking controlled precursors .............................221

311.20 Multiple offences—procuring children for

importing or exporting border controlled drugs or

border controlled plants.................................................221

311.21 Multiple offences—procuring children for

importing or exporting border controlled

precursors ......................................................................222

311.22 General rules—combining parcels from multiple

offences .........................................................................223

Division 312—Working out quantities of drugs, plants or

precursors 224

312.1 Working out quantities of drugs and precursors in

mixtures.........................................................................224

312.2 Working out quantities where different kinds of

drugs, plants or precursors are involved ........................225

Division 313—Defences and alternative verdicts 228

313.1 Defence—conduct justified or excused by or under

a law of a State or Territory...........................................228

313.2 Defence—reasonable belief that conduct is

justified or excused by or under a law ...........................228

313.3 Alternative verdict—offence not proved .......................228

313.4 Alternative verdict—mistake as to quantity of

drug, plant or precursor .................................................229

313.5 Alternative verdict—mistake as to identity of drug,

plant or precursor ..........................................................230

Part 9.2—Psychoactive substances 231

Division 320—Psychoactive substances 231

320.1 Definitions.....................................................................231

320.2 Importing psychoactive substances ...............................232

320.3 Importing substances represented to be serious

drug alternatives ............................................................234

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Part 9.4—Dangerous weapons 237

Division 360—Cross-border firearms trafficking 237

360.1 Disposal and acquisition of a firearm or firearm

part ................................................................................237

360.2 Cross-border offence of disposal or acquisition of

a firearm or firearm part ................................................237

360.3 Taking or sending a firearm or firearm part across

borders...........................................................................238

360.4 Concurrent operation intended ......................................239

Division 361—International firearms trafficking 241

361.1 Definitions.....................................................................241

361.2 Trafficking prohibited firearms or firearm parts

into Australia .................................................................242

361.3 Trafficking prohibited firearms or firearm parts

out of Australia..............................................................243

361.4 Defence—reasonable belief that conduct is

justified or excused by or under a law ...........................244

361.6 Double jeopardy ............................................................244

Part 9.5—Identity crime 245

Division 370—Preliminary 245

370.1 Definitions.....................................................................245

370.2 Definition of foreign indictable offence ........................246

370.3 Concurrent operation intended ......................................246

Division 372—Identity fraud offences 247

372.1 Dealing in identification information ............................247

372.1A Dealing in identification information that involves

use of a carriage service ................................................248

372.2 Possession of identification information .......................250

372.3 Possession of equipment used to make

identification documentation .........................................250

372.4 Extended geographical jurisdiction—category A..........251

372.5 Alternative verdict.........................................................251

372.6 Attempt..........................................................................251

Division 375—Victims’ certificates 252

375.1 Certificate may be issued by magistrate in relation

to victim of identity crime .............................................252

375.2 Content of certificate .....................................................253

375.3 Relation to civil and criminal proceedings ....................253

375.4 Power conferred on magistrate personally.....................253

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Division 376—False identity and air travel 254

376.1 Definitions for Division 376..........................................254

376.2 False identification information—at constitutional

airports ..........................................................................254

376.3 False identification information—air passenger

tickets obtained using a carriage service........................255

376.4 False identification information—air passenger

tickets for constitutional flights .....................................256

376.5 False identification information—extended

jurisdiction (Category D)...............................................257

Part 9.6—Contamination of goods 258

380.1 Definitions.....................................................................258

380.2 Contaminating goods.....................................................258

380.3 Threatening to contaminate goods.................................260

380.4 Making false statements about contamination of

goods .............................................................................262

380.5 Extended geographical jurisdiction—category D..........264

Part 9.9—Criminal associations and organisations 265

Division 390—Criminal associations and organisations 265

Subdivision A—Definitions 265

390.1 Definitions.....................................................................265

390.2 State offences that have a federal aspect .......................267

Subdivision B—Offences 270

390.3 Associating in support of serious organised

criminal activity.............................................................270

390.4 Supporting a criminal organisation................................272

390.5 Committing an offence for the benefit of, or at the

direction of, a criminal organisation..............................273

390.6 Directing activities of a criminal organisation...............275

390.7 Extended geographical jurisdiction—category C ..........277

Chapter 10—National infrastructure 278

Part 10.2—Money laundering 278

Division 400—Money laundering 278

400.1 Definitions.....................................................................278

400.2 Definition of deals with money or other property .........280

400.2A Application of offences relating to possible

instruments of crime......................................................280

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400.3 Dealing in proceeds of crime etc.—money or

property worth $1,000,000 or more...............................281

400.4 Dealing in proceeds of crime etc.—money or

property worth $100,000 or more..................................283

400.5 Dealing in proceeds of crime etc.—money or

property worth $50,000 or more....................................284

400.6 Dealing in proceeds of crime etc.—money or

property worth $10,000 or more....................................285

400.7 Dealing in proceeds of crime etc.—money or

property worth $1,000 or more......................................287

400.8 Dealing in proceeds of crime etc.—money or

property of any value.....................................................288

400.9 Dealing with property reasonably suspected of

being proceeds of crime etc. ..........................................289

400.10 Mistake of fact as to the value of money or

property .........................................................................291

400.11 Proof of certain matters relating to kinds of

offences not required .....................................................292

400.12 Combining several contraventions in a single

charge ............................................................................293

400.13 Proof of other offences is not required ..........................293

400.14 Alternative verdicts .......................................................293

400.15 Geographical jurisdiction ..............................................294

400.16 Saving of other laws ......................................................297

Part 10.5—Postal services 298

Division 470—Preliminary 298

470.1 Definitions.....................................................................298

470.2 Dishonesty.....................................................................300

470.3 Determination of dishonesty to be a matter for the

trier of fact.....................................................................300

470.4 Meaning of expressions used in Subdivisions B

and C of Division 471 ...................................................300

Division 471—Postal offences 302

Subdivision A—General postal offences 302

471.1 Theft of mail-receptacles, articles or postal

messages........................................................................302

471.2 Receiving stolen mail-receptacles, articles or

postal messages .............................................................303

471.3 Taking or concealing of mail-receptacles, articles

or postal messages .........................................................305

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471.4 Dishonest removal of postage stamps or postmarks ......305

471.5 Dishonest use of previously used, defaced or

obliterated stamps..........................................................305

471.6 Damaging or destroying mail-receptacles, articles

or postal messages .........................................................306

471.7 Tampering with mail-receptacles ..................................307

471.8 Dishonestly obtaining delivery of articles .....................307

471.9 Geographical jurisdiction ..............................................307

471.10 Hoaxes—explosives and dangerous substances ............307

471.11 Using a postal or similar service to make a threat .........308

471.12 Using a postal or similar service to menace, harass

or cause offence.............................................................309

471.13 Causing a dangerous article to be carried by a

postal or similar service.................................................309

471.14 Geographical jurisdiction ..............................................310

471.15 Causing an explosive, or a dangerous or harmful

substance, to be carried by post .....................................310

Subdivision B—Offences relating to use of postal or similar

service for child pornography material or child

abuse material 311

471.16 Using a postal or similar service for child

pornography material ....................................................311

471.17 Possessing, controlling, producing, supplying or

obtaining child pornography material for use

through a postal or similar service.................................312

471.18 Defences in respect of child pornography material .......312

471.19 Using a postal or similar service for child abuse

material..........................................................................313

471.20 Possessing, controlling, producing, supplying or

obtaining child abuse material for use through a

postal or similar service.................................................314

471.21 Defences in respect of child abuse material...................314

471.22 Aggravated offence—offence involving conduct

on 3 or more occasions and 2 or more people ...............315

471.23 Alternative verdict if aggravated offence not

proven............................................................................317

Subdivision C—Offences relating to use of postal or similar

service involving sexual activity with person under

16 317

471.24 Using a postal or similar service to procure

persons under 16............................................................317

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471.25 Using a postal or similar service to “groom”

persons under 16............................................................318

471.26 Using a postal or similar service to send indecent

material to person under 16 ...........................................319

471.27 Age-related provisions relating to offences against

this Subdivision.............................................................320

471.28 Other provisions relating to offences against this

Subdivision....................................................................321

471.29 Defences to offences against this Subdivision...............322

Subdivision D—Miscellaneous 323

471.30 Geographical jurisdiction ..............................................323

471.31 Definition of carry by post does not apply ....................323

Division 472—Miscellaneous 324

472.1 Saving of other laws ......................................................324

472.2 Interpretation of other laws ...........................................324

Part 10.6—Telecommunications Services 325

Division 473—Preliminary 325

473.1 Definitions.....................................................................325

473.2 Possession or control of data or material in the

form of data ...................................................................333

473.3 Producing, supplying or obtaining data or material

in the form of data .........................................................333

473.4 Determining whether material is offensive....................333

473.5 Use of a carriage service................................................334

Division 474—Telecommunications offences 335

Subdivision A—Dishonesty with respect to carriage services 335

474.1 Dishonesty.....................................................................335

474.2 General dishonesty with respect to a carriage

service provider .............................................................335

Subdivision B—Interference with telecommunications 336

474.3 Person acting for a carrier or carriage service

provider .........................................................................336

474.4 Interception devices.......................................................336

474.5 Wrongful delivery of communications..........................337

474.6 Interference with facilities .............................................338

474.7 Modification etc. of a telecommunications device

identifier ........................................................................339

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474.8 Possession or control of data or a device with

intent to modify a telecommunications device

identifier ........................................................................340

474.9 Producing, supplying or obtaining data or a device

with intent to modify a telecommunications device

identifier ........................................................................341

474.10 Copying subscription-specific secure data ....................343

474.11 Possession or control of data or a device with

intent to copy an account identifier ...............................344

474.12 Producing, supplying or obtaining data or a device

with intent to copy an account identifier .......................345

Subdivision C—General offences relating to use of

telecommunications 347

474.14 Using a telecommunications network with

intention to commit a serious offence............................347

474.15 Using a carriage service to make a threat ......................348

474.16 Using a carriage service for a hoax threat......................349

474.17 Using a carriage service to menace, harass or

cause offence .................................................................349

474.18 Improper use of emergency call service ........................350

Subdivision D—Offences relating to use of carriage service for

child pornography material or child abuse

material 350

474.19 Using a carriage service for child pornography

material..........................................................................350

474.20 Possessing, controlling, producing, supplying or

obtaining child pornography material for use

through a carriage service..............................................351

474.21 Defences in respect of child pornography material .......352

474.22 Using a carriage service for child abuse material ..........353

474.23 Possessing, controlling, producing, supplying or

obtaining child abuse material for use through a

carriage service..............................................................354

474.24 Defences in respect of child abuse material...................355

474.24A Aggravated offence—offence involving conduct

on 3 or more occasions and 2 or more people ...............356

474.24B Alternative verdict if aggravated offence not

proven............................................................................358

474.24C Consent to commencement of proceedings where

defendant under 18 ........................................................358

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Subdivision E—Offence relating to obligations of internet service

providers and internet content hosts 358

474.25 Obligations of internet service providers and

internet content hosts.....................................................358

Subdivision F—Offences relating to use of carriage service

involving sexual activity with, or causing harm to,

person under 16 359

474.25A Using a carriage service for sexual activity with

person under 16 years of age .........................................359

474.25B Aggravated offence—child with mental

impairment or under care, supervision or authority

of defendant...................................................................360

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 .............................361

474.26 Using a carriage service to procure persons under

16 years of age...............................................................362

474.27 Using a carriage service to “groom” persons under

16 years of age...............................................................363

474.27A Using a carriage service to transmit indecent

communication to person under 16 years of age ...........364

474.28 Provisions relating to offences against this

Subdivision....................................................................365

474.29 Defences to offences against this Subdivision...............367

Subdivision G—Offences relating to use of carriage service for

suicide related material 369

474.29A Using a carriage service for suicide related

material..........................................................................369

474.29B Possessing, controlling, producing, supplying or

obtaining suicide related material for use through a

carriage service..............................................................371

Division 475—Miscellaneous 372

475.1A Defences for NRS employees and emergency call

persons ..........................................................................372

475.1B Provisions relating to element of offence that

particular conduct was engaged in using a carriage

service ...........................................................................372

475.1 Saving of other laws ......................................................373

475.2 Geographical jurisdiction ..............................................373

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Part 10.7—Computer offences 374

Division 476—Preliminary 374

476.1 Definitions.....................................................................374

476.2 Meaning of unauthorised access, modification or

impairment ....................................................................375

476.3 Geographical jurisdiction ..............................................376

476.4 Saving of other laws ......................................................376

476.5 Liability for certain acts ................................................376

Division 477—Serious computer offences 379

477.1 Unauthorised access, modification or impairment

with intent to commit a serious offence.........................379

477.2 Unauthorised modification of data to cause

impairment ....................................................................380

477.3 Unauthorised impairment of electronic

communication ..............................................................380

Division 478—Other computer offences 382

478.1 Unauthorised access to, or modification of,

restricted data ................................................................382

478.2 Unauthorised impairment of data held on a

computer disk etc. .........................................................382

478.3 Possession or control of data with intent to commit

a computer offence ........................................................382

478.4 Producing, supplying or obtaining data with intent

to commit a computer offence .......................................383

Part 10.8—Financial information offences 385

480.1 Definitions.....................................................................385

480.2 Dishonesty.....................................................................386

480.3 Constitutional application of this Part ...........................386

480.4 Dishonestly obtaining or dealing in personal

financial information .....................................................386

480.5 Possession or control of thing with intent to

dishonestly obtain or deal in personal financial

information....................................................................386

480.6 Importation of thing with intent to dishonestly

obtain or deal in personal financial information ............387

Part 10.9—Accounting records 388

Division 490—False dealing with accounting documents 388

490.1 Intentional false dealing with accounting

documents .....................................................................388

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490.2 Reckless false dealing with accounting documents .......390

490.3 Meaning of annual turnover..........................................391

490.4 Related bodies corporate ...............................................392

490.5 Proof of certain matters unnecessary.............................392

490.6 Consent to commencement of proceedings ...................392

490.7 Saving of other laws ......................................................393

Dictionary 394

Endnotes 410

Endnote 1—About the endnotes 410

Endnote 2—Abbreviation key 412

Endnote 3—Legislation history 413

Endnote 4—Amendment history 428

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Section 268.1

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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.

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(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:

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Section 268.6

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(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

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(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

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(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

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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.

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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

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(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.

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(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

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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

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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.

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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;

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(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

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(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

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(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

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(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.

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(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

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(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

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(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:

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(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:

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(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.

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(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

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(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

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(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.

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Section 268.39

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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.

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Section 268.41

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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.

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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.

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Section 268.45

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(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

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(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

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(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.

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Section 268.49

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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:

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(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:

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(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.

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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

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(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:

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(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).

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(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:

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(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

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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.

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(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);

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(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.

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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:

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(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

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(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.

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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

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(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.

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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:

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(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

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(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

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(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.

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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

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(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

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(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.

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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

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(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

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(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

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(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;

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(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

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(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):

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consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent

to an act:

(a) the person submits to the act because of force or the fear of force to the person or to someone else;

(b) the person submits to the act because the person is unlawfully detained;

(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d) the person is incapable of understanding the essential nature of the act;

(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f) the person submits to the act because of psychological oppression or abuse of power;

(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:

(a) a threat of force or coercion such as that caused by fear of

violence, duress, detention, psychological oppression or

abuse of power; or

(b) taking advantage of a coercive environment.

(3) In subsection (1), being reckless as to whether there is consent to

one or more acts of a sexual nature includes not giving any thought

to whether or not the person is consenting to the act or acts of a

sexual nature.

268.85 War crime—forced pregnancy

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator unlawfully confines one or more women

forcibly made pregnant; and

(b) the perpetrator intends to affect the ethnic composition of any

population or to destroy, wholly or partly, a national,

ethnical, racial or religious group as such; and

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(c) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 25 years.

(2) In subsection (1):

forcibly made pregnant includes made pregnant by a consent that

was affected by deception or by natural, induced or age-related

incapacity.

(3) To avoid doubt, this section does not affect any other law of the

Commonwealth or any law of a State or Territory.

268.86 War crime—enforced sterilisation

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator deprives one or more persons of biological

reproductive capacity; and

(b) the deprivation is not effected by a birth-control measure that

has a non-permanent effect in practice; and

(c) the perpetrator’s conduct is neither justified by the medical or

hospital treatment of the person or persons nor carried out

with the consent of the person or persons; and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 25 years.

(2) In subsection (1):

consent does not include consent effected by deception or by

natural, induced or age-related incapacity.

268.87 War crime—sexual violence

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator does either of the following:

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(i) commits an act or acts of a sexual nature against one or

more persons;

(ii) causes one or more persons to engage in an act or acts

of a sexual nature;

without the consent of the person or persons, including by

being reckless as to whether there is consent; and

(b) the perpetrator’s conduct is of a gravity comparable to the

offences referred to in sections 268.82 to 268.87; and

(c) the conduct takes place in the context of, and is associated

with, an armed conflict that is not an international armed

conflict.

Penalty: Imprisonment for 25 years.

(2) Strict liability applies to paragraph (1)(b).

(3) In subsection (1):

consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent

to an act:

(a) the person submits to the act because of force or the fear of force to the person or to someone else;

(b) the person submits to the act because the person is unlawfully detained;

(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d) the person is incapable of understanding the essential nature of the act;

(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f) the person submits to the act because of psychological oppression or abuse of power;

(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:

(a) a threat of force or coercion such as that caused by fear of

violence, duress, detention, psychological oppression or

abuse of power, against the person or another person; or

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(b) taking advantage of a coercive environment.

(4) In subsection (1), being reckless as to whether there is consent to

one or more acts of a sexual nature includes not giving any thought

to whether or not the person is consenting to the act or acts of a

sexual nature.

268.88 War crime—using, conscripting or enlisting children

National armed forces

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator uses one or more persons to participate

actively in hostilities as members of the national armed

forces; and

(b) the person or persons are under the age of 15 years; and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 17 years.

(2) A person (the perpetrator) commits an offence if:

(a) the perpetrator conscripts one or more persons into the

national armed forces; and

(b) the person or persons are under the age of 15 years; and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 15 years.

(3) A person (the perpetrator) commits an offence if:

(a) the perpetrator enlists one or more persons into the national

armed forces; and

(b) the person or persons are under the age of 15 years; and

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(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 10 years.

Other armed forces and groups

(4) A person (the perpetrator) commits an offence if:

(a) the perpetrator uses one or more persons to participate

actively in hostilities other than as members of the national

armed forces; and

(b) the person or persons are under the age of 18 years; and

(c) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 17 years.

(5) A person (the perpetrator) commits an offence if:

(a) the perpetrator conscripts one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

(c) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 15 years.

(6) A person (the perpetrator) commits an offence if:

(a) the perpetrator enlists one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

(c) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty for a contravention of this subsection: Imprisonment for 10

years.

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268.89 War crime—displacing civilians

A person (the perpetrator) commits an offence if:

(a) the perpetrator orders a displacement of a civilian population;

and

(b) the order is not justified by the security of the civilians

involved or by imperative military necessity; and

(c) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 17 years.

268.90 War crime—treacherously killing or injuring

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator invites the confidence or belief of one or more

persons that the perpetrator is entitled to protection, or that

the person or persons are obliged to accord protection to the

perpetrator; and

(b) the perpetrator kills the person or persons; and

(c) the perpetrator makes use of that confidence or belief in

killing the person or persons; and

(d) the person or persons belong to an adverse party; and

(e) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

(a) the perpetrator invites the confidence or belief of one or more

persons that the perpetrator is entitled to protection, or that

the person or persons are obliged to accord protection to the

perpetrator; and

(b) the perpetrator injures the person or persons; and

(c) the perpetrator makes use of that confidence or belief in

injuring the person or persons; and

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(d) the person or persons belong to an adverse party; and

(e) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty for a contravention of this subsection: Imprisonment for 25

years.

268.91 War crime—denying quarter

A person (the perpetrator) commits an offence if:

(a) the perpetrator declares or orders that there are to be no

survivors; and

(b) the declaration or order is given with the intention of

threatening an adversary or conducting hostilities on the basis

that there are to be no survivors; and

(c) the perpetrator is in a position of effective command or

control over the subordinate forces to which the declaration

or order is directed; and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for life.

268.92 War crime—mutilation

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator subjects one or more persons to mutilation,

such as by permanently disfiguring, or permanently disabling

or removing organs or appendages of, the person or persons;

and

(b) the perpetrator’s conduct causes the death of the person or

persons; and

(c) the conduct is neither justified by the medical, dental or

hospital treatment of the person or persons nor carried out in

the interest or interests of the person or persons; and

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(d) the person or persons are in the power of another party to the

conflict; and

(e) the conduct takes place in the context of, and is associated

with, an armed conflict that is not an international armed

conflict.

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

(a) the perpetrator subjects one or more persons to mutilation,

such as by permanently disfiguring, or permanently disabling

or removing organs or appendages of, the person or persons;

and

(b) the perpetrator’s conduct seriously endangers the physical or

mental health, or the integrity, of the person or persons; and

(c) the conduct is neither justified by the medical, dental or

hospital treatment of the person or persons nor carried out in

the interest or interests of the person or persons; and

(d) the person or persons are in the power of another party to the

conflict; and

(e) the conduct takes place in the context of, and is associated

with, an armed conflict that is not an international armed

conflict.

Penalty for a contravention of this subsection: Imprisonment for 25

years.

268.93 War crime—medical or scientific experiments

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator subjects one or more persons to a medical or

scientific experiment; and

(b) the experiment causes the death of the person or persons; and

(c) the perpetrator’s conduct is neither justified by the medical,

dental or hospital treatment of the person or persons nor

carried out in the interest or interests of the person or

persons; and

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(d) the person or persons are in the power of another party to the

conflict; and

(e) the conduct takes place in the context of, and is associated

with, an armed conflict that is not an international armed

conflict.

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

(a) the perpetrator subjects one or more persons to a medical or

scientific experiment; and

(b) the experiment seriously endangers the physical or mental

health, or the integrity, of the person or persons; and

(c) the perpetrator’s conduct is neither justified by the medical,

dental or hospital treatment of the person or persons nor

carried out in the interest or interests of the person or

persons; and

(d) the person or persons are in the power of another party to the

conflict; and

(e) the conduct takes place in the context of, and is associated

with, an armed conflict that is not an international armed

conflict.

Penalty for a contravention of this subsection: Imprisonment for 25

years.

268.94 War crime—destroying or seizing an adversary’s property

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator destroys or seizes certain property; and

(b) the property is property of an adversary; and

(c) the property is protected from the destruction or seizure

under article 14 of Protocol II to the Geneva Conventions;

and

(d) the perpetrator knows of, or is reckless as to, the factual

circumstances that establish that the property is so protected;

and

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(e) the destruction or seizure is not justified by military

necessity; and

(f) the perpetrator’s conduct takes place in the context of, and is

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 15 years

(2) Strict liability applies to paragraph (1)(c).

Subdivision H—War crimes that are grave breaches of

Protocol I to the Geneva Conventions

268.95 War crime—medical procedure

A person (the perpetrator) commits an offence if:

(a) the perpetrator subjects one or more persons to a medical

procedure; and

(b) the procedure seriously endangers the physical or mental

health, or the integrity, of the person or persons; and

(c) the perpetrator’s conduct is not justified by the state of health

of the person or persons; and

(d) the perpetrator knows that, or is reckless as to whether, the

conduct is consistent with generally accepted medical

standards that would be applied under similar medical

circumstances to persons who are of the same nationality as

the perpetrator and are in no way deprived of liberty; and

(e) the person or persons are in the power of, or are interned,

detained or otherwise deprived of liberty by, the country of

the perpetrator as a result of an international armed conflict;

and

(f) the conduct takes place in the context of, and is associated

with, an international armed conflict.

Penalty: Imprisonment for 25 years.

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268.96 War crime—removal of blood, tissue or organs for

transplantation

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator removes from one or more persons blood,

tissue or organs for transplantation; and

(b) in the case of the removal of blood—the removal:

(i) is not for transfusion; or

(ii) is for transfusion without the consent of the person or

persons; and

(c) in the case of the removal of skin—the removal:

(i) is not for grafting; or

(ii) is for grafting without the consent of the person or

persons; and

(d) the intent of the removal is non-therapeutic; and

(e) the removal is not carried out under conditions consistent

with generally accepted medical standards and controls

designed for the benefit of the person or persons and of the

recipient; and

(f) the person or persons are in the power of, or are interned,

detained or otherwise deprived of liberty by, an adverse party

as a result of an international armed conflict; and

(g) the conduct takes place in the context of, and is associated

with, an international armed conflict.

Penalty: Imprisonment for 25 years.

(2) In subsection (1):

consent means consent given voluntarily and without any coercion

or inducement.

268.97 War crime—attack against works or installations containing

dangerous forces resulting in excessive loss of life or

injury to civilians

A person (the perpetrator) commits an offence if:

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(a) the perpetrator launches an attack against works or

installations containing dangerous forces; and

(b) the attack is such that it will cause loss of life, injury to

civilians, or damage to civilian objects, to such an extent as

to be excessive in relation to the concrete and direct military

advantage anticipated; and

(c) the perpetrator knows that the attack will cause loss of life,

injury to civilians, or damage to civilian objects, to such an

extent; and

(d) the attack results in death or serious injury to body or health;

and

(e) the perpetrator’s conduct takes place in the context of, and is

associated with, an international armed conflict.

Penalty: Imprisonment for life.

268.98 War crime—attacking undefended places or demilitarized

zones

A person (the perpetrator) commits an offence if:

(a) the perpetrator attacks one or more towns, villages,

dwellings, buildings or demilitarized zones; and

(b) the towns, villages, dwellings or buildings are open for

unresisted occupation; and

(c) the attack results in death or serious injury to body or health;

and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an international armed conflict.

Penalty: Imprisonment for life.

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Division 268 Genocide, crimes against humanity, war crimes and crimes against the

administration of the justice of the International Criminal Court

Section 268.99

72 Criminal Code Act 1995

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268.99 War crime—unjustifiable delay in the repatriation of

prisoners of war or civilians

(1) A person (the perpetrator) commits an offence if:

(a) one or more persons are in the power of, or are interned,

detained or otherwise deprived of liberty by, an adverse party

as a result of an international armed conflict; and

(b) the perpetrator unjustifiably delays the repatriation of the

person or persons to the person’s own country or the persons’

own countries; and

(c) the delay is in violation of Part IV of the Third Geneva

Convention or Chapter XII of Section IV of Part III of the

Fourth Geneva Convention.

Penalty: Imprisonment for 10 years.

(2) Strict liability applies to paragraph (1)(c).

268.100 War crime—apartheid

A person (the perpetrator) commits an offence if:

(a) the perpetrator commits against one or more persons an act

that is a proscribed inhumane act or is of a nature and gravity

similar to any proscribed inhumane act; and

(b) the perpetrator knows of, or is reckless at to, the factual

circumstances that establish the character of the act; and

(c) the perpetrator’s conduct is committed in the context of an

institutionalised regime of systematic oppression and

domination by one racial group over any other racial group or

groups; and

(d) the perpetrator intends to maintain the regime by the conduct;

and

(e) the conduct takes place in the context of, and is associated

with, an international armed conflict.

Penalty: Imprisonment for 17 years.

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the justice of the International Criminal Court Division 268

Section 268.101

Criminal Code Act 1995 73

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268.101 War crime—attacking protected objects

A person (the perpetrator) commits an offence if:

(a) the perpetrator directs an attack; and

(b) the object of the attack is any one or more of the following

that are not used in support of the military effort and are not

located in the immediate proximity of military objectives:

(i) clearly recognised historic monuments;

(ii) works of art;

(iii) places of worship; and

(c) the monuments, works of art and places of worship constitute

the cultural or spiritual heritage of peoples and have been

given special protection by special arrangement (for example,

within the framework of a competent international

organisation); and

(d) the perpetrator’s conduct takes place in the context of, and is

associated with, an international armed conflict.

Penalty: Imprisonment for 20 years.

Subdivision J—Crimes against the administration of the justice

of the International Criminal Court

268.102 Perjury

(1) A person commits the offence of perjury if:

(a) the person makes a sworn statement in or for the purposes of

a proceeding before the International Criminal Court; and

(b) the statement is false.

Penalty: Imprisonment for 10 years.

(2) A person who is an interpreter commits the offence of perjury if:

(a) the person, by a sworn statement, gives an interpretation of a

statement or other thing in or for the purposes of a

proceeding before the International Criminal Court; and

(b) the interpretation is false or misleading.

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administration of the justice of the International Criminal Court

Section 268.103

74 Criminal Code Act 1995

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Penalty: Imprisonment for 10 years.

268.103 Falsifying evidence

(1) A person commits an offence if the person makes false evidence

with the intention of:

(a) influencing a decision on the institution of a proceeding

before the International Criminal Court; or

(b) influencing the outcome of such a proceeding.

Penalty: Imprisonment for 7 years.

(2) A person commits an offence if the person:

(a) uses evidence that is false evidence and that the person

believes is false evidence; and

(b) is reckless as to whether or not the use of the evidence could:

(i) influence a decision on the institution of a proceeding

before the International Criminal Court; or

(ii) influence the outcome of such a proceeding.

Penalty: Imprisonment for 7 years.

(3) For the purposes of this section, making evidence includes altering

evidence, but does not include perjury.

268.104 Destroying or concealing evidence

(1) A person commits an offence if the person destroys or conceals

evidence with the intention of:

(a) influencing a decision on the institution of a proceeding

before the International Criminal Court; or

(b) influencing the outcome of such a proceeding.

Penalty: Imprisonment for 7 years.

(2) For the purposes of this section, destroying evidence includes

making the evidence illegible, indecipherable or otherwise

incapable of being identified.

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Section 268.105

Criminal Code Act 1995 75

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268.105 Deceiving witnesses

A person commits an offence if the person deceives another person

with the intention that the other person or a third person will:

(a) give false evidence in a proceeding before the International

Criminal Court; or

(b) withhold true evidence at such a proceeding.

Penalty: Imprisonment for 5 years.

268.106 Corrupting witnesses or interpreters

(1) A person commits an offence if the person provides, or offers or

promises to provide, a benefit to another person with the intention

that the other person or a third person will:

(a) not attend as a witness at a proceeding before the

International Criminal Court; or

(b) give false evidence at such a proceeding; or

(c) withhold true evidence at such a proceeding.

Penalty: Imprisonment for 5 years.

(2) A person commits an offence if the person asks for, or receives or

agrees to receive, a benefit for himself, herself or another person

with the intention that he, she or another person will:

(a) not attend as a witness at a proceeding before the

International Criminal Court; or

(b) give false evidence at such a proceeding; or

(c) withhold true evidence at such a proceeding.

Penalty: Imprisonment for 5 years.

(3) A person commits an offence if the person provides, or offers or

promises to provide, a benefit to another person with the intention

that the other person or a third person will:

(a) not attend as an interpreter at a proceeding before the

International Criminal Court; or

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Section 268.107

76 Criminal Code Act 1995

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(b) give a false or misleading interpretation as an interpreter at

such a proceeding.

Penalty: Imprisonment for 5 years.

268.107 Threatening witnesses or interpreters

(1) A person commits an offence if the person causes or threatens to

cause any detriment to another person with the intention that the

other person or a third person will:

(a) not attend as a witness at a proceeding before the

International Criminal Court; or

(b) give false evidence at such a proceeding; or

(c) withhold true evidence at such a proceeding.

Penalty: Imprisonment for 7 years.

(2) A person commits an offence if the person causes or threatens to

cause any detriment to another person with the intention that the

other person or a third person will:

(a) not attend as an interpreter at a proceeding before the

International Criminal Court; or

(b) give a false or misleading interpretation as an interpreter in

such a proceeding.

Penalty: Imprisonment for 7 years.

268.108 Preventing witnesses or interpreters

(1) A person commits an offence if the person, by his or her conduct,

intentionally prevents another person from attending as a witness

or interpreter at a proceeding before the International Criminal

Court.

Penalty: Imprisonment for 5 years.

(2) This section does not apply to conduct that constitutes an offence

against section 268.105, 268.106, 268.107, 268.109 or 268.110.

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Section 268.109

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268.109 Preventing production of things in evidence

A person commits an offence if the person, by his or her conduct,

intentionally prevents another person from producing in evidence

at a proceeding before the International Criminal Court a thing that

is legally required to be produced.

Penalty: Imprisonment for 5 years.

268.110 Reprisals against witnesses

(1) A person commits an offence if the person causes or threatens to

cause any detriment to another person who was a witness in a

proceeding before the International Criminal Court:

(a) because of anything done by the other person in or for the

purposes of the proceeding; and

(b) in the belief that the other person was a witness who had

done that thing.

Penalty: Imprisonment for 5 years.

(2) It is a defence to a prosecution for an offence against subsection (1)

that:

(a) the detriment to the witness was not (apart from this section)

an offence; and

(b) the witness committed perjury in the proceeding before the

International Criminal Court.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3).

(3) In this section:

witness includes:

(a) a person who attends at a proceeding before the International

Criminal Court as a witness but is not called as a witness; or

(b) an interpreter.

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Division 268 Genocide, crimes against humanity, war crimes and crimes against the

administration of the justice of the International Criminal Court

Section 268.111

78 Criminal Code Act 1995

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268.111 Reprisals against officials of the International Criminal

Court

(1) A person commits an offence if the person causes or threatens to

cause any detriment to another person who is an official of the

International Criminal Court:

(a) because of anything done by the other person; and

(b) in the belief that the other person was an official of that Court

who had done that thing for the purposes of a proceeding

before that Court.

Penalty: Imprisonment for 5 years.

(2) A person commits an offence if the person causes or threatens to

cause any detriment to another person who is an official of the

International Criminal Court:

(a) because of anything done by a third person who is an official

of that Court; and

(b) in the belief that the third person was an official of that Court

who had done that thing for the purposes of a proceeding

before that Court.

Penalty: Imprisonment for 5 years.

268.112 Perverting the course of justice

(1) A person commits an offence if the person, by his or her conduct,

intentionally perverts the course of justice in respect of the

International Criminal Court.

Penalty: Imprisonment for 5 years.

(2) This section does not apply to conduct that constitutes the

publication of any matter.

(3) In this section:

perverts includes obstructs, prevents or defeats.

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the justice of the International Criminal Court Division 268

Section 268.113

Criminal Code Act 1995 79

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268.113 Receipt of a corrupting benefit by an official of the

International Criminal Court

(1) A person who is an official of the International Criminal Court

commits an offence if:

(a) the person:

(i) asks for a benefit for himself, herself or another person;

or

(ii) receives or obtains a benefit for himself, herself or

another person; or

(iii) agrees to receive or obtain a benefit for himself, herself

or another person; and

(b) the person does so with the intention that the exercise of the

person’s duties as an official of the International Criminal

Court will be influenced.

Penalty: Imprisonment for 10 years.

(2) For the purposes of subsection (1), it is immaterial whether the

benefit is in the nature of a reward.

268.114 Subdivision not to apply to certain conduct

(1) This Subdivision does not apply to a person in respect of:

(a) conduct that results in a failure or refusal to issue a certificate

under section 22 or 29 of the International Criminal Court

Act 2002; or

(b) a failure or refusal to issue such a certificate; or

(c) conduct engaged in reliance on the absence of such a

certificate.

(2) In this section:

conduct includes any one or more acts or omissions.

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Division 268 Genocide, crimes against humanity, war crimes and crimes against the

administration of the justice of the International Criminal Court

Section 268.115

80 Criminal Code Act 1995

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Subdivision K—Miscellaneous

268.115 Responsibility of commanders and other superiors

(1) The criminal responsibility imposed by this section is in addition to

other grounds of criminal responsibility under the law in force in

Australia for acts or omissions that are offences under this

Division.

(2) A military commander or person effectively acting as a military

commander is criminally responsible for offences under this

Division committed by forces under his or her effective command

and control, or effective authority and control, as the case may be,

as a result of his or her failure to exercise control properly over

those forces, where:

(a) the military commander or person either knew or, owing to

the circumstances at the time, was reckless as to whether the

forces were committing or about to commit such offences;

and

(b) the military commander or person failed to take all necessary

and reasonable measures within his or her power to prevent

or repress their commission or to submit the matter to the

competent authorities for investigation and prosecution.

(3) With respect to superior and subordinate relationships not

described in subsection (2), a superior is criminally responsible for

offences against this Division committed by subordinates under his

or her effective authority and control, as a result of his or her

failure to exercise control properly over those subordinates, where:

(a) the superior either knew, or consciously disregarded

information that clearly indicated, that the subordinates were

committing or about to commit such offences; and

(b) the offences concerned activities that were within the

effective responsibility and control of the superior; and

(c) the superior failed to take all necessary and reasonable

measures within his or her power to prevent or repress their

commission or to submit the matter to the competent

authorities for investigation and prosecution.

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Section 268.116

Criminal Code Act 1995 81

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268.116 Defence of superior orders

(1) The fact that genocide or a crime against humanity has been

committed by a person pursuant to an order of a Government or of

a superior, whether military or civilian, does not relieve the person

of criminal responsibility.

(2) Subject to subsection (3), the fact that a war crime has been

committed by a person pursuant to an order of a Government or of

a superior, whether military or civilian, does not relieve the person

of criminal responsibility.

(3) It is a defence to a war crime that:

(a) the war crime was committed by a person pursuant to an

order of a Government or of a superior, whether military or

civilian; and

(b) the person was under a legal obligation to obey the order; and

(c) the person did not know that the order was unlawful; and

(d) the order was not manifestly unlawful.

Note: A defendant bears an evidential burden in establishing the elements in

subsection (3). See subsection 13.3(3).

268.117 Geographical jurisdiction

(1) Section 15.4 (extended geographical jurisdiction—Category D)

applies to genocide, crimes against humanity and war crimes.

(2) Section 15.3 (extended geographical jurisdiction—Category C)

applies to crimes against the administration of the justice of the

International Criminal Court.

268.118 Double jeopardy

A person cannot be tried by a federal court or a court of a State or

Territory for an offence under this Division if the person has

already been convicted or acquitted by the International Criminal

Court for an offence constituted by substantially the same conduct

as constituted the offence under this Division.

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Section 268.119

82 Criminal Code Act 1995

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268.119 Offences related to exercise of jurisdiction of International

Criminal Court

(1) A person must not:

(a) intentionally contravene an order that the International

Criminal Court makes while sitting in Australia; or

(b) otherwise intentionally hinder the International Criminal

Court in performing its functions while sitting in Australia.

Penalty: Imprisonment for 2 years.

(2) In this section:

Australia includes all the external Territories.

268.120 Saving of other laws

This Division is not intended to exclude or limit any other law of

the Commonwealth or any law of a State or Territory.

268.121 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be

commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the

name of the Attorney-General.

(3) However, a person may be arrested, charged, remanded in custody,

or released on bail, in connection with an offence under this

Division before the necessary consent has been given.

268.122 Attorney-General’s decisions in relation to consents to be

final

(1) Subject to any jurisdiction of the High Court under the

Constitution, a decision by the Attorney-General to give, or to

refuse to give, a consent under section 268.121:

(a) is final; and

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(b) must not be challenged, appealed against, reviewed, quashed

or called in question; and

(c) is not subject to prohibition, mandamus, injunction,

declaration or certiorari.

(2) The reference in subsection (1) to a decision includes a reference to

the following:

(a) a decision to vary, suspend, cancel or revoke a consent that

has been given;

(b) a decision to impose a condition or restriction in connection

with the giving of, or a refusal to give, a consent or to

remove a condition or restriction so imposed;

(c) a decision to do anything preparatory to the making of a

decision to give, or to refuse to give, a consent or preparatory

to the making of a decision referred to in paragraph (a) or (b),

including a decision for the taking of evidence or the holding

of an inquiry or investigation;

(d) a decision doing or refusing to do anything else in connection

with a decision to give, or to refuse to give, a consent or a

decision referred to in paragraph (a), (b) or (c);

(e) a failure or refusal to make a decision whether or not to give

a consent or a decision referred to in a paragraph (a), (b), (c)

or (d).

(3) Any jurisdiction of the High Court referred to in subsection (1) is

exclusive of the jurisdiction of any other court.

268.123 Legal representation

The provisions of section 12 (other than subsection 12(2)) of the

Geneva Conventions Act 1957 apply in relation to the trial of a

person for an offence against this Division in the same way as they

apply in relation to the trial of a protected prisoner of war.

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Section 268.124

84 Criminal Code Act 1995

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268.124 Proof of application of Geneva Conventions or Protocol I to

the Geneva Conventions

If, in proceedings under this Division in respect of a grave breach

of any of the Geneva Conventions or of Protocol I to the Geneva

Conventions, a question arises under:

(a) Article 2 of the Geneva Convention concerned (which relates

to the circumstances in which the Convention applies); or

(b) Article 1 of that Protocol (which relates to the circumstances

in which the Protocol applies);

a certificate signed by the Minister responsible for legislation

relating to foreign affairs certifying to any matter relevant to that

question is prima facie evidence of the matter so certified.

268.125 Meaning of civilian

In this Division, the expression civilian does not include a person

who is a member of an organised armed group.

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Slavery and slavery-like conditions Division 270

Section 270.1A

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Division 270—Slavery and slavery-like conditions

Subdivision A—Preliminary

270.1A Definitions for Division 270

In this Division:

coercion includes coercion by any of the following:

(a) force;

(b) duress;

(c) detention;

(d) psychological oppression;

(e) abuse of power;

(f) taking advantage of a person’s vulnerability.

conducting a business includes:

(a) taking any part in the management of the business; and

(b) exercising control or direction over the business; and

(c) providing finance for the business.

deceive has the same meaning as in Division 271 (see

section 271.1).

Note: Deception has a corresponding meaning (see section 18A of the Acts

Interpretation Act 1901).

forced labour has the meaning given by section 270.6.

forced marriage has the meaning given by section 270.7A.

servitude has the meaning given by section 270.4.

slavery has the meaning given by section 270.1.

slavery-like offence means an offence against any of the following

provisions:

(a) section 270.5 (servitude offences);

(b) section 270.6A (forced labour offences);

(c) section 270.7 (deceptive recruiting for labour or services);

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Section 270.1

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(d) section 270.7B (forced marriage offences).

threat means:

(a) a threat of coercion; or

(b) a threat to cause a person’s deportation or removal from

Australia; or

(c) a threat of any other detrimental action, unless there are

reasonable grounds for the threat of that action in connection

with the provision of labour or services by a person.

Note: Threat includes a threat made by any conduct, whether express or

implied and whether conditional or unconditional (see the definition in

the Dictionary).

Subdivision B—Slavery

270.1 Definition of slavery

For the purposes of this Division, slavery is the condition of a

person over whom any or all of the powers attaching to the right of

ownership are exercised, including where such a condition results

from a debt or contract made by the person.

270.2 Slavery is unlawful

Slavery remains unlawful and its abolition is maintained, despite

the repeal by the Criminal Code Amendment (Slavery and Sexual

Servitude) Act 1999 of Imperial Acts relating to slavery.

270.3 Slavery offences

(1) A person who, whether within or outside Australia, intentionally:

(aa) reduces a person to slavery; or

(a) possesses a slave or exercises over a slave any of the other

powers attaching to the right of ownership; or

(b) engages in slave trading; or

(c) enters into any commercial transaction involving a slave; or

(d) exercises control or direction over, or provides finance for:

(i) any act of slave trading; or

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(ii) any commercial transaction involving a slave;

commits an offence.

Penalty: Imprisonment for 25 years.

(2) A person who:

(a) whether within or outside Australia:

(i) enters into any commercial transaction involving a

slave; or

(ii) exercises control or direction over, or provides finance

for, any commercial transaction involving a slave; or

(iii) exercises control or direction over, or provides finance

for, any act of slave trading; and

(b) is reckless as to whether the transaction or act involves a

slave, slavery, slave trading or the reduction of a person to

slavery;

commits an offence.

Penalty: Imprisonment for 17 years.

(3) In this section:

commercial transaction involving a slave includes a commercial

transaction by which a person is reduced to slavery.

slave trading includes:

(a) the capture, transport or disposal of a person with the

intention of reducing the person to slavery; or

(b) the purchase or sale of a slave.

(4) A person who engages in any conduct with the intention of

securing the release of a person from slavery does not commit an

offence against this section.

(5) The defendant bears a legal burden of proving the matter

mentioned in subsection (4).

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Division 270 Slavery and slavery-like conditions

Section 270.3A

88 Criminal Code Act 1995

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270.3A Slavery offences—geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D)

applies to an offence against section 270.3.

270.3B Prosecutions

(1) Proceedings for an offence against section 270.3, where the

conduct constituting the alleged offence occurs wholly outside

Australia, must not take place except with the consent in writing of

the Attorney-General.

(2) Even though a consent in accordance with subsection (1) has not

been given in relation to an offence against section 270.3:

(a) a person may be arrested for the offence, and a warrant for

the arrest of a person for the offence may be issued and

executed; and

(b) a person may be charged with the offence; and

(c) a person so charged may be remanded in custody or on bail;

but no further step in proceedings referred to in subsection (1) is to

be taken until such a consent has been given.

(3) Subsection (2) does not prevent the discharge of the accused if

proceedings are not continued within a reasonable time.

Subdivision C—Slavery-like conditions

270.4 Definition of servitude

(1) For the purposes of this Division, servitude is the condition of a

person (the victim) who provides labour or services, if, because of

the use of coercion, threat or deception:

(a) a reasonable person in the position of the victim would not

consider himself or herself to be free:

(i) to cease providing the labour or services; or

(ii) to leave the place or area where the victim provides the

labour or services; and

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(b) the victim is significantly deprived of personal freedom in

respect of aspects of his or her life other than the provision of

the labour or services.

(2) Subsection (1) applies whether the coercion, threat or deception is

used against the victim or another person.

(3) The victim may be in a condition of servitude whether or not:

(a) escape from the condition is practically possible for the

victim; or

(b) the victim has attempted to escape from the condition.

270.5 Servitude offences

Causing a person to enter into or remain in servitude

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes another person to enter into or remain in

servitude.

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 20 years; or

(b) in any other case—imprisonment for 15 years.

Conducting a business involving servitude

(2) A person commits an offence if:

(a) the person conducts any business; and

(b) the business involves the servitude of another person (or

persons).

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 20 years; or

(b) in any other case—imprisonment for 15 years.

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Division 270 Slavery and slavery-like conditions

Section 270.6

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Alternative verdict of forced labour

(3) Subsection (4) applies if, in a prosecution for an offence (the

servitude offence) against a provision listed in column 1 of the

following table, the trier of fact:

(a) is not satisfied that the defendant is guilty of that offence; but

(b) is satisfied beyond reasonable doubt that the defendant is

guilty of an offence (the forced labour offence) against the

corresponding provision listed in column 2 of the table.

Servitude and forced labour offences

Item Column 1

Servitude offences

Column 2

Forced labour offences

1 Subsection (1) of this section Subsection 270.6A(1)

2 Subsection (2) of this section Subsection 270.6A(2)

(4) The trier of fact may find the defendant not guilty of the servitude

offence, but guilty of the forced labour offence, so long as the

defendant has been afforded procedural fairness in relation to that

finding of guilt.

270.6 Definition of forced labour

(1) For the purposes of this Division, forced labour is the condition of

a person (the victim) who provides labour or services if, because of

the use of coercion, threat or deception, a reasonable person in the

position of the victim would not consider himself or herself to be

free:

(a) to cease providing the labour or services; or

(b) to leave the place or area where the victim provides the

labour or services.

(2) Subsection (1) applies whether the coercion, threat or deception is

used against the victim or another person.

(3) The victim may be in a condition of forced labour whether or not:

(a) escape from the condition is practically possible for the

victim; or

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(b) the victim has attempted to escape from the condition.

270.6A Forced labour offences

Causing a person to enter into or remain in forced labour

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes another person to enter into or remain in

forced labour.

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 12 years; or

(b) in any other case—imprisonment for 9 years.

Conducting a business involving forced labour

(2) A person commits an offence if:

(a) the person conducts any business; and

(b) the business involves the forced labour of another person (or

persons).

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 12 years; or

(b) in any other case—imprisonment for 9 years.

Note: On a trial for an offence against section 270.5 (servitude offences), the

trier of fact may find a defendant not guilty of that offence but guilty

of the corresponding offence under this section (see

subsections 270.5(3) and (4)).

270.7 Deceptive recruiting for labour or services

A person (the recruiter) commits an offence if:

(a) the recruiter engages in conduct; and

(b) the recruiter engages in the conduct with the intention of

inducing another person (the victim) to enter into an

engagement to provide labour or services; and

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Section 270.7A

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(c) the conduct causes the victim to be deceived about:

(i) the extent to which the victim will be free to leave the

place or area where the victim provides the labour or

services; or

(ii) the extent to which the victim will be free to cease

providing the labour or services; or

(iii) the extent to which the victim will be free to leave his or

her place of residence; or

(iv) if there is or will be a debt owed or claimed to be owed

by the victim in connection with the engagement—the

quantum, or the existence, of the debt owed or claimed

to be owed; or

(v) the fact that the engagement will involve exploitation,

or the confiscation of the victim’s travel or identity

documents; or

(vi) if the engagement is to involve the provision of sexual

services—that fact, or the nature of sexual services to be

provided (for example, whether those services will

require the victim to have unprotected sex).

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 9 years; or

(b) in any other case—imprisonment for 7 years.

270.7A Definition of forced marriage

(1) A marriage is a forced marriage if one party to the marriage (the

victim) entered into the marriage without freely and fully

consenting:

(a) because of the use of coercion, threat or deception; or

(b) because the party was incapable of understanding the nature

and effect of the marriage ceremony.

(2) For the purposes of subsection (1), marriage includes the

following:

(a) a registered relationship within the meaning of section 2E of

the Acts Interpretation Act 1901;

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(b) a marriage recognised under a law of a foreign country;

(c) a relationship registered (however that process is described)

under a law of a foreign country, if the relationship is of the

same, or a similar, type as any registered relationship within

the meaning of section 2E of the Acts Interpretation Act

1901;

(d) a marriage (including a relationship or marriage mentioned in

paragraph (a), (b) or (c)) that is void, invalid, or not

recognised by law, for any reason, including the following:

(i) a party to the marriage has not freely or fully consented

to the marriage (for example, because of natural,

induced or age-related incapacity);

(ii) a party to the marriage is married (within the meaning

of this subsection) to more than one person.

Note: Section 2E of the Acts Interpretation Act 1901 covers relationships

registered under a law of a State or Territory that are prescribed by

regulations under that Act.

(3) Paragraph (1)(a) applies whether the coercion, threat or deception

is used against the victim or another person.

(4) For the purposes of proving an offence against this Division or

Division 271, a person under 16 years of age is presumed, unless

the contrary is proved, to be incapable of understanding the nature

and effect of a marriage ceremony.

Note: A defendant bears a legal burden in relation to proving the contrary

(see section 13.4).

270.7B Forced marriage offences

Causing a person to enter into a forced marriage

(1) A person (the first person) commits an offence if:

(a) the first person engages in conduct; and

(b) the conduct causes another person to enter into a forced

marriage as the victim of the marriage.

Penalty:

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Section 270.8

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(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 9 years; or

(b) in any other case—imprisonment for 7 years.

Being a party to a forced marriage

(2) A person commits an offence if:

(a) the person is a party to a marriage (within the meaning of

section 270.7A); and

(b) the marriage is a forced marriage; and

(c) the person is not a victim of the forced marriage.

Penalty:

(a) in the case of an aggravated offence (see section 270.8)—

imprisonment for 9 years; or

(b) in any other case—imprisonment for 7 years.

(3) Strict liability applies to paragraph (2)(c).

Note: For strict liability, see section 6.1.

(4) Subsection (2) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3)).

270.8 Slavery-like offences—aggravated offences

(1) For the purposes of this Division, a slavery-like offence committed

by a person (the offender) against another person (the victim) is an

aggravated offence if any of the following applies:

(a) the victim is under 18;

(b) the offender, in committing the offence, subjects the victim

to cruel, inhuman or degrading treatment;

(c) the offender, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

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(2) If the prosecution intends to prove an aggravated offence, the

charge must allege the relevant aggravated offence.

(3) If, on a trial for an aggravated offence, the trier of fact is not

satisfied that the defendant is guilty of the aggravated offence, but

is otherwise satisfied that the defendant is guilty of the

corresponding slavery-like offence, it may find the defendant not

guilty of the aggravated offence, but guilty of the corresponding

slavery-like offence.

(4) Subsection (3) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the

corresponding slavery-like offence.

270.9 Slavery-like offences—jurisdictional requirement

Section 15.2 (extended geographical jurisdiction—category B)

applies to a slavery-like offence.

270.10 Slavery-like offences—relevant evidence

(1) For the purposes of proceedings for a slavery-like offence, the trier

of fact may have regard to any of the matters covered by

subsection (2) in determining whether a person (the alleged victim)

against whom the offence is alleged to have been committed has

been coerced, threatened or deceived.

(2) The following matters are covered by this subsection:

(a) the economic relationship between the alleged victim and the

alleged offender;

(b) the terms of any written or oral contract or agreement

between the alleged victim and the alleged offender;

(c) the personal circumstances of the alleged victim, including

but not limited to:

(i) whether he or she is entitled to be in Australia under the

Migration Act 1958; and

(ii) his or her ability to speak, write and understand English

or another language; and

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Section 270.11

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(iii) the extent of his or her social and physical dependence

on the alleged offender.

(3) Subsection (1) does not:

(a) prevent the leading of any other evidence in the relevant

proceedings; or

(b) limit the manner in which evidence may be given or the

admissibility of evidence.

Subdivision D—Offences against Division 270: general

270.11 Offences against Division 270—no defence of victim consent

or acquiescence

To avoid doubt, it is not a defence in a proceeding for an offence

against this Division that a person against whom the offence is

alleged to have been committed consented to, or acquiesced in,

conduct constituting any element of the offence.

270.12 Offences against Division 270—other laws not excluded

(1) This Division is not intended to exclude or limit the operation of

any other law of the Commonwealth or any law of a State or

Territory.

Note: Division 279 (video link evidence) applies to a proceeding for an

offence against this Division.

(2) Without limiting subsection (1), this Division is not intended to

exclude or limit the concurrent operation of any other law of the

Commonwealth, or a law of a State or Territory, that makes:

(a) an act or omission that is an offence against a provision of

this Division; or

(b) a similar act or omission;

an offence against the law of the Commonwealth, State or

Territory.

(3) Subsection (2) applies even if the other law of the Commonwealth,

or the law of the State or Territory, does any one or more of the

following:

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(a) provides for a penalty for the offence that differs from the

penalty provided for in this Division;

(b) provides for a fault element in relation to the offence that

differs from the fault elements applicable to the offence

under this Division;

(c) provides for a defence in relation to the offence that differs

from the defences applicable to the offence under this

Division.

270.13 Offences against Division 270—double jeopardy

If a person has been convicted or acquitted in a country outside

Australia of an offence against the law of that country in respect of

any conduct, the person cannot be convicted of an offence against

this Division in respect of that conduct.

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Division 271 Trafficking in persons and debt bondage

Section 271.1

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Division 271—Trafficking in persons and debt bondage

Subdivision A—Definitions

271.1 Definitions

In this Division:

coercion has the same meaning as in Division 270 (see

section 270.1A).

confiscate, in relation to a person’s travel or identity document,

means to take possession of the document, whether permanently or

otherwise, to the exclusion of the person, or to destroy the

document.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

deceive means mislead as to fact (including the intention of any

person) or as to law, by words or other conduct.

Note: Deception has a corresponding meaning (see section 18A of the Acts

Interpretation Act 1901).

exploitation has the meaning given by section 271.1A.

threat has the same meaning as in Division 270 (see

section 270.1A).

271.1A Definition of exploitation

For the purposes of this Division, exploitation, of one person (the

victim) by another person, occurs if the other person’s conduct

causes the victim to enter into any of the following conditions:

(a) slavery, or a condition similar to slavery;

(b) servitude;

(c) forced labour;

(d) forced marriage;

(e) debt bondage.

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Note: Division 270 (slavery and slavery-like offences) deals with slavery,

servitude, forced labour and forced marriage. Subdivision C of this

Division deals with debt bondage.

Subdivision B—Offences relating to trafficking in persons

271.2 Offence of trafficking in persons

(1) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the entry or proposed

entry, or the receipt, of another person into Australia; and

(b) the first person uses coercion, threat or deception; and

(c) that use of coercion, threat or deception results in the first

person obtaining the other person’s compliance in respect of

that entry or proposed entry or in respect of that receipt.

Penalty: Imprisonment for 12 years.

(1A) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the exit or proposed

exit of another person from Australia; and

(b) the first person uses coercion, threat or deception; and

(c) that use of coercion, threat or deception results in the first

person obtaining the other person’s compliance in respect of

that exit or proposed exit.

Penalty: Imprisonment for 12 years.

(1B) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the entry or proposed

entry, or the receipt, of another person into Australia; and

(b) in organising or facilitating that entry or proposed entry, or

that receipt, the first person is reckless as to whether the other

person will be exploited, either by the first person or another,

after that entry or receipt.

Penalty: Imprisonment for 12 years.

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Section 271.2

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(1C) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the exit or proposed

exit of another person from Australia; and

(b) in organising or facilitating that exit or proposed exit, the

first person is reckless as to whether the other person will be

exploited, either by the first person or another, after that exit.

Penalty: Imprisonment for 12 years.

(2) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the entry or proposed

entry, or the receipt, of another person into Australia; and

(b) the first person deceives the other person about the fact that

the other person’s entry or proposed entry, the other person’s

receipt or any arrangements for the other person’s stay in

Australia, will involve the provision by the other person of

sexual services or will involve the other person’s exploitation

or the confiscation of the other person’s travel or identity

documents.

Penalty: Imprisonment for 12 years.

(2A) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the exit or proposed

exit of another person from Australia; and

(b) the first person deceives the other person about the fact that

the other person’s exit or proposed exit is for purposes that

involve the provision by the other person of sexual services

outside Australia or will involve the other person’s

exploitation or the confiscation of the other person’s travel or

identity documents.

Penalty: Imprisonment for 12 years.

(2B) A person (the first person) commits an offence of trafficking in

persons if:

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(a) the first person organises or facilitates the entry or proposed

entry, or the receipt, of another person into Australia; and

(b) there is an arrangement for the other person to provide sexual

services in Australia; and

(c) the first person deceives the other person about any of the

following:

(i) the nature of the sexual services to be provided;

(ii) the extent to which the other person will be free to leave

the place or area where the other person provides sexual

services;

(iii) the extent to which the other person will be free to cease

providing sexual services;

(iv) the extent to which the other person will be free to leave

his or her place of residence;

(v) if there is a debt owed or claimed to be owed by the

other person in connection with the arrangement for the

other person to provide sexual services—the quantum,

or the existence, of the debt owed or claimed to be

owed.

Penalty: Imprisonment for 12 years.

(2C) A person (the first person) commits an offence of trafficking in

persons if:

(a) the first person organises or facilitates the exit or proposed

exit of another person from Australia; and

(b) there is an arrangement for the other person to provide sexual

services outside Australia; and

(c) the first person deceives the other person about any of the

following:

(i) the nature of the sexual services to be provided;

(ii) the extent to which the other person will be free to leave

the place or area where the other person provides sexual

services;

(iii) the extent to which the other person will be free to cease

providing sexual services;

(iv) the extent to which the other person will be free to leave

his or her place of residence;

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Section 271.3

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(v) if there is a debt owed or claimed to be owed by the

other person in connection with the arrangement for the

other person to provide sexual services—the quantum,

or the existence, of the debt owed or claimed to be

owed.

Penalty: Imprisonment for 12 years.

(3) Absolute liability applies to paragraphs (1)(c) and (1A)(c).

271.3 Trafficking in persons—aggravated offence

(1) A person (the first person) commits an aggravated offence of

trafficking in persons if the first person commits the offence of

trafficking in persons in relation to another person (the victim) and

any of the following applies:

(a) the first person commits the offence intending that the victim

will be exploited, either by the first person or another:

(i) if the offence of trafficking in persons is an offence

against subsection 271.2(1), (1B), (2) or (2B)—after

entry into Australia; or

(ii) if the offence of trafficking in persons is an offence

against subsection 271.2(1A), (1C), (2A) or (2C)—after

exit from Australia;

(b) the first person, in committing the offence, subjects the

victim to cruel, inhuman or degrading treatment;

(c) the first person, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

Penalty: Imprisonment for 20 years.

(2) If, on a trial for an offence against this section, the court, or if the

trial is before a jury, the jury, is not satisfied that the defendant is

guilty of the aggravated offence, but is satisfied that he or she is

guilty of an offence against section 271.2, it may find the

defendant not guilty of the aggravated offence but guilty of an

offence against that section.

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(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.2.

Note: Section 271.2 provides for offences of trafficking in persons.

271.4 Offence of trafficking in children

(1) A person (the first person) commits an offence of trafficking in

children if:

(a) the first person organises or facilitates the entry or proposed

entry into Australia, or the receipt in Australia, of another

person; and

(b) the other person is under the age of 18; and

(c) in organising or facilitating that entry or proposed entry, or

that receipt, the first person:

(i) intends that the other person will be used to provide

sexual services or will be otherwise exploited, either by

the first person or another, after that entry or receipt; or

(ii) is reckless as to whether the other person will be used to

provide sexual services or will be otherwise exploited,

either by the first person or another, after that entry or

receipt.

Penalty: Imprisonment for 25 years.

(2) A person (the first person) commits an offence of trafficking in

children if:

(a) the first person organises or facilitates the exit or proposed

exit from Australia of another person; and

(b) the other person is under the age of 18; and

(c) in organising or facilitating that exit or proposed exit, the

first person:

(i) intends that the other person will be used to provide

sexual services or will be otherwise exploited, either by

the first person or another, after that exit; or

(ii) is reckless as to whether the other person will be used to

provide sexual services or will be otherwise exploited,

either by the first person or another, after that exit.

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Section 271.5

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Penalty: Imprisonment for 25 years.

271.5 Offence of domestic trafficking in persons

(1) A person (the first person) commits an offence of domestic

trafficking in persons if:

(a) the first person organises or facilitates the transportation or

proposed transportation of another person from one place in

Australia to another place in Australia; and

(b) the first person uses coercion, threat or deception; and

(c) that use of coercion, threat or deception results in the first

person obtaining the other person’s compliance in respect of

that transportation or proposed transportation.

Penalty: Imprisonment for 12 years.

(2) A person (the first person) commits an offence of domestic

trafficking in persons if:

(a) the first person organises or facilitates the transportation or

proposed transportation of another person from one place in

Australia to another place in Australia; and

(b) in organising or facilitating that transportation or proposed

transportation, the first person is reckless as to whether the

other person will be exploited, either by the first person or

another, after that transportation.

Penalty: Imprisonment for 12 years.

(2A) A person (the first person) commits an offence of domestic

trafficking in persons if:

(a) the first person organises or facilitates the transportation of

another person from one place in Australia to another place

in Australia; and

(b) the first person deceives the other person about the fact that

the transportation, or any arrangements the first person has

made for the other person following the transportation, will

involve the provision by the other person of sexual services

or will involve the other person’s exploitation or the

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confiscation of the other person’s travel or identity

documents.

Penalty: Imprisonment for 12 years.

(2B) A person (the first person) commits an offence of domestic

trafficking in persons if:

(a) the first person organises or facilitates the transportation of

another person from one place in Australia to another place

in Australia; and

(b) there is an arrangement for the other person to provide sexual

services; and

(c) the first person deceives the other person about any of the

following:

(i) the nature of the sexual services to be provided;

(ii) the extent to which the other person will be free to leave

the place or area where the other person provides sexual

services;

(iii) the extent to which the other person will be free to cease

providing sexual services;

(iv) the extent to which the other person will be free to leave

his or her place of residence;

(v) if there is a debt owed or claimed to be owed by the

other person in connection with the arrangement for the

other person to provide sexual services—the quantum,

or the existence, of the debt owed or claimed to be

owed.

Penalty: Imprisonment for 12 years.

(3) Absolute liability applies to paragraph (1)(c).

271.6 Domestic trafficking in persons—aggravated offence

(1) A person (the first person) commits an aggravated offence of

domestic trafficking in persons if the first person commits the

offence of domestic trafficking in persons in relation to another

person (the victim) and any of the following applies:

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Section 271.7

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(a) the first person commits the offence intending that the victim

will be exploited, either by the first person or by another,

after arrival at the place to which the person has been

transported;

(b) the first person, in committing the offence, subjects the

victim to cruel, inhuman or degrading treatment;

(c) the first person, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

Penalty: Imprisonment for 20 years.

(2) If, on a trial for an offence against this section, the court, or if the

trial is before a jury, the jury, is not satisfied that the defendant is

guilty of the aggravated offence, but is satisfied that he or she is

guilty of an offence against section 271.5, it may find the

defendant not guilty of the aggravated offence, but guilty of an

offence against that section.

(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.5.

Note: Section 271.5 provides for offences of domestic trafficking in persons.

271.7 Offence of domestic trafficking in children

A person commits an offence of domestic trafficking in children if:

(a) the first-mentioned person organises or facilitates the

transportation of another person from one place in Australia

to another place in Australia; and

(b) the other person is under the age of 18; and

(c) in organising or facilitating that transportation, the

first-mentioned person:

(i) intends that the other person will be used to provide

sexual services or will be otherwise exploited, either by

the first-mentioned person or another, during or

following the transportation to that other place; or

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(ii) is reckless as to whether the other person will be used to

provide sexual services or will be otherwise exploited,

either by the first-mentioned person or another, during

or following the transportation to that other place.

Penalty: Imprisonment for 25 years.

Subdivision BA—Organ trafficking

271.7A Removal of organs contrary to this Subdivision

The removal of a person’s organ is contrary to this Subdivision if:

(a) the removal, or entering into an agreement for the removal,

would be contrary to the law of the State or Territory where it

is, or is to be, carried out; or

(b) neither the victim, nor the victim’s guardian, consents to the

removal, and it would not meet a medical or therapeutic need

of the victim.

271.7B Offence of organ trafficking—entry into and exit from

Australia

Entry into Australia

(1) A person (the offender) commits an offence of organ trafficking if:

(a) the offender engages in conduct consisting of the

organisation or facilitation of the entry or proposed entry, or

the receipt, of another person (the victim) into Australia; and

(b) the offender is reckless as to whether the conduct will result

in the removal of an organ of the victim contrary to this

Subdivision, by the offender or another person, after or in the

course of that entry or receipt.

Penalty: Imprisonment for 12 years.

Note: For when the removal of an organ is contrary to this Subdivision, see

section 271.7A.

Exit from Australia

(2) A person (the offender) commits an offence of organ trafficking if:

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(a) the offender engages in conduct consisting of the

organisation or facilitation of the exit or proposed exit of

another person (the victim) from Australia; and

(b) the offender is reckless as to whether the conduct will result

in the removal of an organ of the victim contrary to this

Subdivision, by the offender or another person, after or in the

course of that exit.

Penalty: Imprisonment for 12 years.

Note: For when the removal of an organ is contrary to this Subdivision, see

section 271.7A.

271.7C Organ trafficking—aggravated offence

(1) A person (the offender) commits an aggravated offence of organ

trafficking if the offender commits an offence of organ trafficking

in relation to another person (the victim) and any of the following

applies:

(a) the victim is under 18;

(b) the offender commits the offence intending that an organ of

the victim will be removed contrary to this Subdivision,

either by the offender or another person:

(i) if the offence of organ trafficking is an offence against

subsection 271.7B(1)—after or in the course of entry

into Australia; or

(ii) if the offence of organ trafficking is an offence against

subsection 271.7B(2)—after or in the course of exit

from Australia;

(c) the offender, in committing the offence, subjects the victim

to cruel, inhuman or degrading treatment;

(d) the offender, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

Penalty:

(a) if this subsection applies because the victim is under 18—

imprisonment for 25 years; or

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(b) in any other case—imprisonment for 20 years.

Note: For when the removal of an organ is contrary to this Subdivision, see

section 271.7A.

(2) If, on a trial for an offence against this section, the court, or if the

trial is before a jury, the jury, is not satisfied that the defendant is

guilty of the aggravated offence, but is satisfied that he or she is

guilty of an offence against section 271.7B, it may find the

defendant not guilty of the aggravated offence but guilty of an

offence against that section.

(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.7B.

Note: Section 271.7B provides for offences of organ trafficking.

271.7D Offence of domestic organ trafficking

A person (the offender) commits an offence of domestic organ

trafficking if:

(a) the offender engages in conduct consisting of the

organisation, or facilitation, of the transportation or proposed

transportation of another person (the victim) from one place

in Australia to another place in Australia; and

(b) the offender is reckless as to whether the conduct will result

in the removal of an organ of the victim contrary to this

Subdivision, by the offender or another person, after or in the

course of that transportation.

Penalty: Imprisonment for 12 years.

Note: For when the removal of an organ is contrary to this Subdivision, see

section 271.7A.

271.7E Domestic organ trafficking—aggravated offence

(1) A person (the offender) commits an aggravated offence of

domestic organ trafficking if the offender commits an offence of

domestic organ trafficking in relation to another person (the victim)

and any of the following applies:

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(a) the victim is under 18;

(b) the offender commits the offence intending that an organ of

the victim will be removed contrary to this Subdivision,

either by the offender or another person, after arrival at the

place to which the person has been transported, or in the

course of transportation;

(c) the offender, in committing the offence, subjects the victim

to cruel, inhuman or degrading treatment;

(d) the offender, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

Penalty:

(a) if this subsection applies because the victim is under 18—

imprisonment for 25 years; or

(b) in any other case—imprisonment for 20 years.

Note: For when the removal of an organ is contrary to this Subdivision, see

section 271.7A.

(2) If, on a trial for an offence against this section, the court, or if the

trial is before a jury, the jury, is not satisfied that the defendant is

guilty of the aggravated offence, but is satisfied that he or she is

guilty of an offence against section 271.7D, it may find the

defendant not guilty of the aggravated offence, but guilty of an

offence against that section.

(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.7D.

Note: Section 271.7D provides for offences of domestic organ trafficking.

Subdivision BB—Harbouring a victim

271.7F Harbouring a victim

(1) A person (the offender) commits an offence of harbouring a victim

if:

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(a) the offender harbours, receives or conceals another person

(the victim); and

(b) the harbouring, receipt or concealing of the victim:

(i) assists a third person in connection with any offence

committed by the third person (the third person

offence); or

(ii) furthers a third person’s purpose in relation to any

offence committed by the third person (the third person

offence); and

(c) the third person offence is an offence against this Division

(apart from this section) or Division 270.

Penalty: Imprisonment for 4 years.

(2) Recklessness applies in relation to paragraph (1)(b).

(3) Absolute liability applies in relation to paragraph (1)(c).

(4) A person may be found guilty of an offence against subsection (1)

even if the third person has not been prosecuted for, or has not

been found guilty, of any other offence.

271.7G Harbouring a victim—aggravated offence

(1) A person (the offender) commits an aggravated offence of

harbouring a victim if:

(a) the offender commits an offence of harbouring a victim in

relation to another person (the victim); and

(b) the victim is under 18.

Penalty: Imprisonment for 7 years.

(2) If, on a trial for an offence against this section, the trier of fact is

not satisfied that the defendant is guilty of the aggravated offence,

but is satisfied that the defendant is guilty of an offence against

section 271.7F, it may find the defendant not guilty of the

aggravated offence, but guilty of an offence against that section.

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Section 271.8

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(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.7F.

Note: Section 271.7F provides for the offence of harbouring a victim.

Subdivision C—Offences relating to debt bondage

271.8 Offence of debt bondage

A person commits an offence of debt bondage if:

(a) the person engages in conduct that causes another person to

enter into debt bondage; and

(b) the person intends to cause the other person to enter into debt

bondage.

Penalty: Imprisonment for 4 years.

271.9 Debt bondage—aggravated offence

(1) A person (the offender) commits an offence of aggravated debt

bondage if the offender commits an offence of debt bondage in

relation to another person (the victim) and any of the following

applies:

(a) the victim is under 18;

(b) the offender, in committing the offence, subjects the victim

to cruel, inhuman or degrading treatment;

(c) the offender, in committing the offence:

(i) engages in conduct that gives rise to a danger of death

or serious harm to the victim or another person; and

(ii) is reckless as to that danger.

Penalty: Imprisonment for 7 years.

(2) If, on a trial for an offence against this section, the trier of fact is

not satisfied that the defendant is guilty of the aggravated offence,

but is satisfied that the defendant is guilty of an offence against

section 271.8, it may find the defendant not guilty of the

aggravated offence, but guilty of an offence against that section.

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(3) Subsection (2) only applies if the defendant has been afforded

procedural fairness in relation to the finding of guilt for the offence

against section 271.8.

Note: Section 271.8 provides for the offence of debt bondage.

Subdivision D—Offences against Division 271: general

271.10 Jurisdictional requirements—offences other than domestic

trafficking in persons or organs

Section 15.2 (extended geographical jurisdiction—category B)

applies to an offence against section 271.2, 271.3, 271.4, 271.7B,

271.7C, 271.7F, 271.7G, 271.8 or 271.9.

271.11 Jurisdictional requirements—offences of domestic trafficking

in persons or organs

A person commits an offence against section 271.5, 271.6, 271.7,

271.7D or 271.7E only if one or more of the following paragraphs

applies:

(a) the conduct constituting the offence occurs to any extent

outside Australia;

(b) the conduct constituting the offence involves transportation

across State borders, either for reward or in connection with a

commercial arrangement;

(c) the conduct constituting the offence occurs within a Territory

or involves transportation to or from a Territory;

(d) the conduct constituting the offence is engaged in by, or on

behalf of, a constitutional corporation, or in circumstances

where the victims of the trafficking conduct were intended to

be employed by a constitutional corporation;

(e) some of the conduct constituting the offence is engaged in by

communication using a postal, telegraphic or telephonic

service within the meaning of paragraph 51(v) of the

Constitution;

(f) the victim of the conduct constituting the offence is an alien

for the purposes of paragraph 51(xix) of the Constitution.

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Section 271.11A

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271.11A Offences against Division 271—relevant evidence

(1) For the purposes of proceedings for an offence against this

Division, the trier of fact may have regard to any of the matters

covered by subsection (2) in determining whether, in relation to a

person (the alleged victim) against whom the offence is alleged to

have been committed:

(a) in the case of an offence against Subdivision B or BB—the

alleged victim has been coerced, threatened or deceived; or

(b) in the case of an offence against Subdivision BA—the

alleged victim, or the alleged victim’s guardian, has

consented to the removal of an organ of the alleged victim; or

(c) in the case of an offence against Subdivision C—another

person has caused the alleged victim to enter into debt

bondage.

(2) The following matters are covered by this subsection:

(a) the economic relationship between the alleged victim and the

alleged offender;

(b) the terms of any written or oral contract or agreement

between the alleged victim and the alleged offender;

(c) the personal circumstances of the alleged victim, including

but not limited to:

(i) whether he or she is entitled to be in Australia under the

Migration Act 1958; and

(ii) his or her ability to speak, write and understand English

or another language; and

(iii) the extent of his or her social and physical dependence

on the alleged offender.

(3) If subsection (1) applies in relation to the consent of an alleged

victim’s guardian to the removal of an organ of the alleged victim,

a reference in subsection (2) to the alleged victim is taken to

include a reference to the alleged victim’s guardian.

(4) Subsection (1) does not:

(a) prevent the leading of any other evidence in the relevant

proceedings; or

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(b) limit the manner in which evidence may be given or the

admissibility of evidence.

271.11B Offences against Division 271—no defence of victim consent

or acquiescence

To avoid doubt, it is not a defence in a proceeding for an offence

against this Division that a person against whom the offence is

alleged to have been committed consented to, or acquiesced in,

conduct constituting any element of the offence.

271.12 Offences against Division 271—other laws not excluded

(1) This Division is not intended to exclude or limit the operation of

any other law of the Commonwealth or any law of a State or

Territory.

Note: Division 279 (video link evidence) applies to a proceeding for an

offence against this Division.

(2) Without limiting subsection (1), this Division is not intended to

exclude or limit the concurrent operation of any other law of the

Commonwealth, or a law of a State or Territory, that makes:

(a) an act or omission that is an offence against a provision of

this Division; or

(b) a similar act or omission;

an offence against the law of the Commonwealth, State or

Territory.

(3) Subsection (2) applies even if the other law of the Commonwealth,

or the law of the State or Territory, does any one or more of the

following:

(a) provides for a penalty for the offence that differs from the

penalty provided for in this Division;

(b) provides for a fault element in relation to the offence that

differs from the fault elements applicable to the offence

under this Division;

(c) provides for a defence in relation to the offence that differs

from the defences applicable to the offence under this

Division.

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Section 271.13

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271.13 Double jeopardy

If a person has been convicted or acquitted in a country outside

Australia of an offence against the law of that country in respect of

any conduct, the person cannot be convicted of an offence against

this Division in respect of that conduct.

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Division 272—Child sex offences outside Australia

Subdivision A—Preliminary

272.1 Definitions

In this Division:

cause a person to engage in sexual intercourse or other sexual

activity has the meaning given by section 272.2.

offence, in the case of a reference to an offence against this

Division or against a particular provision of it, has a meaning

affected by section 272.5.

position of trust or authority has the meaning given by

subsection 272.3(1).

sexual intercourse has the meaning given by section 272.4.

272.2 When conduct causes a person to engage in sexual intercourse

or other sexual activity

For the purposes of this Division, a person’s conduct causes

another person to engage in sexual intercourse or other sexual

activity if it substantially contributes to the other person engaging

in sexual intercourse or other sexual activity.

272.3 Meaning of position of trust or authority

(1) For the purposes of this Code, a person is in a position of trust or

authority in relation to another person if:

(a) the person is the other person’s parent, step-parent, or

grandparent; or

(b) the person is the other person’s foster parent, guardian or

carer; or

(c) the person is a teacher engaged in the education of the other

person; or

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(d) the person is a religious official or spiritual leader (however

described) providing pastoral care or religious instruction to

the other person; or

(e) the person is the other person’s sports coach; or

(f) the person is a medical practitioner, nurse, psychologist,

other health professional (however described), counsellor or

social worker providing professional services to the other

person; or

(g) the person is a member of a police force or police service, or

a person employed or providing services in a correctional

institution (however described), performing duties in relation

to the other person; or

(h) the person:

(i) is an employer of the other person; or

(ii) has the authority to determine significant aspects of the

other person’s terms and conditions of employment; or

(iii) has the authority to terminate the other person’s

employment (whether the other person is being paid in

respect of that employment or is working in a voluntary

capacity).

(2) Without limiting who is a grandparent of a person for the purposes

of this section, a person (the first person) is the grandparent of

another person if the first person is a parent or step-parent of a

parent or step-parent of the other person.

272.4 Meaning of sexual intercourse

(1) In this Code, sexual intercourse means:

(a) the penetration, to any extent, of the vagina or anus of a

person by any part of the body of another person; or

(b) the penetration, to any extent, of the vagina or anus of a

person, by an object, carried out by another person; or

(c) fellatio; or

(d) cunnilingus; or

(e) the continuation of any activity mentioned in paragraph (a),

(b), (c) or (d).

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(2) In this Code, sexual intercourse does not include an act of

penetration that:

(a) is carried out for a proper medical or hygienic purpose; or

(b) is carried out for a proper law enforcement purpose.

(3) For the purposes of this section, vagina includes:

(a) any part of a female person’s genitalia; and

(b) a surgically constructed vagina.

272.5 Meaning of offence against this Division and extension of

criminal responsibility

(1) A reference in this Division (except section 272.19, which deals

with encouraging an offence against this Division) to an offence

against this Division, or against a particular provision of it,

includes:

(a) a reference to:

(i) an offence against section 6 of the Crimes Act 1914

(accessory after the fact); or

(ii) an offence against section 11.1 (attempt), 11.5

(conspiracy) or 272.19 of this Code;

that relates to an offence against this Division or against that

provision of it; and

(b) a reference to an offence against this Division, or against that

provision of it, because of section 11.2 (complicity and

common purpose), 11.2A (joint commission) or 11.3

(commission by proxy).

(2) A reference in section 272.19 (encouraging offence against this

Division) to an offence against this Division or against a particular

provision of it does not include a reference to such an offence

because of section 11.2 (complicity and common purpose) or

11.2A (joint commission).

(3) Section 11.1 (attempt) does not apply to an offence against:

(a) section 272.14 (procuring child to engage in sexual activity

outside Australia); or

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(b) section 272.15 (“grooming” child to engage in sexual activity

outside Australia); or

(c) section 272.20 (preparing for or planning offence against this

Division).

(4) Section 11.4 (incitement) does not apply to an offence against this

Division.

(5) Section 11.5 (conspiracy) does not apply to an offence against

section 272.19 (encouraging offence against this Division).

272.6 Who can be prosecuted for an offence committed outside

Australia

A person must not be charged with an offence against this Division

that the person allegedly committed wholly outside Australia

unless, at the time of the offence, the person was:

(a) an Australian citizen; or

(b) a resident of Australia; or

(c) a body corporate incorporated by or under a law of the

Commonwealth or of a State or Territory; or

(d) any other body corporate that carries on its activities

principally in Australia.

272.7 Saving of other laws

This Division is not intended to exclude or limit the operation of

any other law of the Commonwealth or any law of a State or

Territory.

Note: Division 279 (video link evidence) applies to a proceeding for an

offence against this Division.

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Section 272.8

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Subdivision B—Sexual offences against children outside

Australia

272.8 Sexual intercourse with child outside Australia

Engaging in sexual intercourse with child

(1) A person commits an offence if:

(a) the person engages in sexual intercourse with another person

(the child); and

(b) the child is under 16; and

(c) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 20 years.

Causing child to engage in sexual intercourse in presence of

defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

(b) that conduct causes the child to engage in sexual intercourse

in the presence of the person; and

(c) the child is under 16 when the sexual intercourse is engaged

in; and

(d) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 20 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c)

and (d).

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

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Section 272.9

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272.9 Sexual activity (other than sexual intercourse) with child

outside Australia

Engaging in sexual activity with child

(1) A person commits an offence if:

(a) the person engages in sexual activity (other than sexual

intercourse) with another person (the child); and

(b) the child is under 16; and

(c) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

(b) that conduct causes the child to engage in sexual activity

(other than sexual intercourse) in the presence of the person;

and

(c) the child is under 16 when the sexual activity is engaged in;

and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 15 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c)

and (d).

Note: For absolute liability, see section 6.2.

Defence—child present but defendant does not intend to derive

gratification

(5) It is a defence to a prosecution for an offence against subsection (1)

or (2) if:

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(a) the conduct constituting the offence consists only of the child

being in the presence of the defendant while sexual activity is

engaged in; and

(b) the defendant proves that he or she did not intend to derive

gratification from the presence of the child during that

activity.

Note 1: A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Note 2: For a defence based on belief about age, see section 272.16.

272.10 Aggravated offence—child with mental impairment or under

care, supervision or authority of defendant

(1) A person commits an offence against this section (the aggravated

offence) if:

(a) the person commits an offence (the underlying offence)

against one of the following provisions in relation to another

person (the child):