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 K—Miscellaneous

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.

12 Legal representation of prisoners of war
(1) The court before which a protected prisoner of war is brought up
for trial for an offence shall not proceed with the trial unless:
(a) the accused is represented by counsel; and
(b) it is proved to the satisfaction of the court that a period of not
less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to
the solicitor by whom that counsel was instructed;
and if the court adjourns the trial for the purpose of enabling the
requirements of this subsection to be complied with, then,
notwithstanding anything in any other law, the court may remand
the accused for the period of the adjournment.
(2) In the absence of counsel accepted by the accused as representing
him or her, counsel instructed for the purpose on behalf of the
protecting power shall, without prejudice to the requirements of
paragraph (1)(b), be regarded for the purposes of that subsection as
representing the accused.
(3) If the court adjourns the trial in pursuance of subsection (1) by
reason that the accused is not represented by counsel, the court
shall direct that a solicitor and counsel be assigned to watch over
the interests of the accused at any further proceedings in
connection with the offence, and at any such further proceedings,
in the absence of counsel either accepted by the accused as
representing him or her or instructed as mentioned in
subsection (2), counsel assigned in pursuance of this subsection
shall, without prejudice to the requirements of paragraph (1)(b), be
regarded for the purposes of subsection (1) as representing the
accused.
(4) In relation to any proceedings before a court before which the
accused may be represented by a solicitor, subsections (1), (2) and
(3) shall be construed, with any necessary modifications, as if
references in those provisions to counsel were references to
counsel or a solicitor; and for the purposes of any such proceedings
the court, in giving a direction under subsection (3), may, if the
court is satisfied that the nature of the charge and the interests of
justice do not require that the interests of the accused should be
watched over by counsel, direct that a solicitor only shall be
assigned as mentioned in that subsection.
(5) A solicitor or counsel shall be assigned in pursuance of
subsection (3) in such manner as is provided by the regulations or,
in the absence of provision in the regulations, as the court directs,
and the fees and costs of any solicitor or counsel so assigned shall
be paid by the Commonwealth.

''Schedule 3—Geneva Convention Relative to the Treatment of Prisoners of War of
August 12, 1949 CHAPTER III.—PENAL AND DISCIPLINARY SANCTIONS III. Judicial Proceedings, ARTICLE 105''
The prisoner of war shall be entitled to assistance by one of his prisoner
comrades, to defence by a qualified advocate or counsel of his own choice, to
the calling of witnesses and, if he deems necessary, to the services of a
competent interpreter. He shall be advised of these rights by the Detaining
Power in due time before the trial.
Failing a choice by the prisoner of war, the Protecting Power shall find him
an advocate or counsel, and shall have at least one week at its disposal for the
purpose. The Detaining Power shall deliver to the said Power, on request, a list
of persons qualified to present the defence. Failing a choice of an advocate or
counsel by the prisoner of war or the Protecting Power, the Detaining Power
shall appoint a competent advocate or counsel to conduct the defence.
The advocate or counsel conducting the defence on behalf of the prisoner
of war shall have at his disposal a period of two weeks at least before the
opening of the trial, as well as the necessary facilities to prepare the defence of
the accused. He may, in particular, freely visit the accused and interview him in
private. He may also confer with any witnesses for the defence, including
prisoners of war. He shall have the benefit of these facilities until the term of
appeal or petition has expired.
Particulars of the charge or charges on which the prisoner of war is to be
arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining
Power, shall be communicated to the accused prisoner of war in a language
which he understands, and in good time before the opening of the trial. The
same communication in the same circumstances shall be made to the advocate
or counsel conducting the defence on behalf of the prisoner of war.
The representatives of the Protecting Power shall be entitled to attend the
trial of the case, unless, exceptionally, this is held in camera in the interest of
State security. In such a case the Detaining Power shall advise the Protecting
Power accordingly.

Schedule 1—Amendment of the Criminal Code Act 1995

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 K—Miscellaneous


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.

An Act to provide for the Trial and Punishment of War Criminals#

Part III—War crimes

19 Legal assistance

(1) A person who has been, or is about to be, charged with an offence against this Act may apply to the Attorney-General for assistance under this section.

(2) If the Attorney-General is satisfied that in all the circumstances it is appropriate and reasonable to grant an application made under this section, he or she may authorise the provision by the Commonwealth to the applicant of such legal or financial assistance in connection with a proceeding for the offence as the Attorney-General determines.

(3) An authorisation under subsection (2) may be made subject to such
conditions (if any) as the Attorney-General determines.

(4) In considering an application made under this section, the Attorney-General shall have regard to any hardship to the applicant that refusal of the application would involve.

(5) As soon as practicable after deciding to refuse an application made under this section, the Attorney-General shall give the applicant a written notice that:

(a) sets out the decision and the reasons for it; and

(b) requests the applicant to consent in writing to a copy of the notice being laid before each House of the Parliament in accordance with subsection (6).

(6) Where an applicant gives a consent in writing pursuant to a request under subsection (5), the Attorney-General shall cause a copy of the notice to which the consent relates to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General receives the consent.

An Act to provide for the Trial and Punishment of War Criminals#

Part III—War crimes

19 Legal assistance

(1) A person who has been, or is about to be, charged with an offence against this Act may apply to the Attorney-General for assistance under this section.

(2) If the Attorney-General is satisfied that in all the circumstances it is appropriate and reasonable to grant an application made under this section, he or she may authorise the provision by the Commonwealth to the applicant of such legal or financial assistance in connection with a proceeding for the offence as the Attorney-General determines.

(3) An authorisation under subsection (2) may be made subject to such
conditions (if any) as the Attorney-General determines.

(4) In considering an application made under this section, the Attorney-General shall have regard to any hardship to the applicant that refusal of the application would involve.

(5) As soon as practicable after deciding to refuse an application made under this section, the Attorney-General shall give the applicant a written notice that:

(a) sets out the decision and the reasons for it; and

(b) requests the applicant to consent in writing to a copy of the notice being laid before each House of the Parliament in accordance with subsection (6).

(6) Where an applicant gives a consent in writing pursuant to a request under subsection (5), the Attorney-General shall cause a copy of the notice to which the consent relates to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General receives the consent.