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 B—Genocide

268.3 Genocide by killing

A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty: Imprisonment for life.


268.4 Genocide by causing serious bodily or mental harm

(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes serious bodily or mental harm to one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty: Imprisonment for life.

(2) In subsection (1):
causes serious bodily or mental harm includes, but is not restricted to, commits acts of torture, rape, sexual violence or inhuman or degrading treatment.


268.5 Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction

(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts certain conditions of life upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.

Penalty: Imprisonment for life.

(2) In subsection (1):
conditions of life includes, but is not restricted to, intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.


268.6 Genocide by imposing measures intended to prevent births

A person (the perpetrator) commits an offence if:
(a) the perpetrator imposes certain measures upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the measures imposed are intended to prevent births within that group.

Penalty: Imprisonment for life.


268.7 Genocide by forcibly transferring children

(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical, racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.

Penalty: Imprisonment for life.

(2) In subsection (1):
forcibly transfers one or more persons includes transfers one or more persons:
(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.

Subdivision C—Urging violence and advocating terrorism or genocide

80.2 Urging violence against the Constitution etc.

Urging the overthrow of the Constitution or Government by force or violence
(1) A person (the first person) commits an offence if:

(a) the first person intentionally urges another person to overthrow by force or violence:

(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth; and

(b) the first person does so intending that force or violence will occur.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

(2) Recklessness applies to the element of the offence under subsection (1) that it is:

(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth;

that the first person urges the other person to overthrow.

Urging interference in Parliamentary elections or constitutional referenda by force or violence
(3) A person (the first person) commits an offence if:

(a) the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:

(i) an election of a member or members of a House of the Parliament; or
(ii) a referendum; and

(b) the first person does so intending that force or violence will occur.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

(4) Recklessness applies to the element of the offence under subsection (3) that it is lawful processes for an election of a member or members of a House of the Parliament, or for a referendum, that the first person urges the other person to interfere with.

Note: There is a defence in section 80.3 for acts done in good faith.


80.2A Urging violence against groups

Offences
(1) A person (the first person) commits an offence if:

(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

Penalty: Imprisonment for 5 years.

Note: For intention, see section 5.2.

(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.

Note: For recklessness, see section 5.4.

Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).

(5) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Note: There is a defence in section 80.3 for acts done in good faith.


80.2B Urging violence against members of groups

Offences
(1) A person (the first person) commits an offence if:

(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(e) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

Penalty: Imprisonment for 5 years.

Note: For intention, see section 5.2.

(3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.

Note: For recklessness, see section 5.4.

Alternative verdict
(5) Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).

(6) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Note: There is a defence in section 80.3 for acts done in good faith.


80.2C Advocating terrorism

(1) A person commits an offence if:

(a) the person advocates:

(i) the doing of a terrorist act; or
(ii) the commission of a terrorism offence referred to in subsection (2); and

(b) the person engages in that conduct reckless as to whether another person will:

(i) engage in a terrorist act; or
(ii) commit a terrorism offence referred to in subsection (2).

Note: There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 5 years.

(2) A terrorism offence is referred to in this subsection if:

(a) the offence is punishable on conviction by imprisonment for 5 years or more; and
(b) the offence is not:

(i) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the extent that it relates to a terrorism offence; or
(ii) a terrorism offence that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).

Definitions
(3) In this section:

advocates: a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.

terrorism offence has the same meaning as in subsection 3(1) of the Crimes Act 1914.

terrorist act has the same meaning as in section 100.1.

(4) A reference in this section to advocating the doing of a terrorist act or the commission of a terrorism offence includes a reference to:

(a) advocating the doing of a terrorist act or the commission of a terrorism offence, even if a terrorist act or terrorism offence does not occur; and
(b) advocating the doing of a specific terrorist act or the commission of a specific terrorism offence; and
(c) advocating the doing of more than one terrorist act or the commission of more than one terrorism offence.


80.2D Advocating genocide

(1) A person commits an offence if:

(a) the person advocates genocide; and
(b) the person engages in that conduct reckless as to whether another person will engage in genocide.

Note: There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 7 years.

Double jeopardy
(2) A person cannot be tried by a federal court or a court of a State or Territory for an offence against subsection (1) 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 against subsection (1).

Definitions
(3) In this section:

advocate means counsel, promote, encourage or urge.

genocide means the commission of an offence against Subdivision B (genocide) of Division 268, other than:

(a) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the extent that it relates to an offence against that Subdivision; or
(b) an offence against that Subdivision that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).

(4) A reference in this section to advocating genocide includes a reference to:

(a) advocating genocide, even if genocide does not occur; and
(b) advocating the commission of a specific offence that is genocide; and
(c) advocating the commission of more than one offence, each of which is genocide.

80.2D Advocating genocide

(1) A person commits an offence if:

(a) the person advocates genocide; and
(b) the person engages in that conduct reckless as to whether another person will engage in genocide.

Note: There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 7 years.

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 B—Genocide


268.3 Genocide by killing

A person (the perpetrator) commits an offence if:

(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty: Imprisonment for life.


268.4 Genocide by causing serious bodily or mental harm

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

(a) the perpetrator causes serious bodily or mental harm to one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty: Imprisonment for life.

(2) In subsection (1):
causes serious bodily or mental harm includes, but is not restricted to, commits acts of torture, rape, sexual violence or inhuman or degrading treatment.


268.5 Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction

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

(a) the perpetrator inflicts certain conditions of life upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.

Penalty: Imprisonment for life.

(2) In subsection (1):
conditions of life includes, but is not restricted to, intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.


268.6 Genocide by imposing measures intended to prevent births

A person (the perpetrator) commits an offence if:

(a) the perpetrator imposes certain measures upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the measures imposed are intended to prevent births within that group.

Penalty: Imprisonment for life.

268.7 Genocide by forcibly transferring children

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

(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical, racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.
Penalty: Imprisonment for life.

(2) In subsection (1):
forcibly transfers one or more persons includes transfers one or more persons:

(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.

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


268.116 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.

Part 1—Preliminary

4 Definitions
crime within the jurisdiction of the ICC means:
(a) an international crime; or

Part 1—Preliminary

4 Definitions
international crime means a crime in respect of which the ICC has jurisdiction under article 5 of the Statute.