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
268.117 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.
Chapter 2—General principles of criminal responsibility
Part 2.7—Geographical jurisdiction
Division 15—Extended geographical jurisdiction
15.4 Extended geographical jurisdiction—category D
If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
An Act to amend the War Crimes Act 1945
5. Sections 3 to 14, inclusive, of the Principal Act are repealed and the following section and Parts are substituted:
Application
"3. This Act extends to all external Territories and has extra-territorial operation according to its tenor".
An Act to provide for the Trial and Punishment of War Criminals#
Part I—Preliminary
3 Application
This Act extends to all external Territories and has extra-territorial operation according to its tenor.
An Act to provide for the Trial and Punishment of War Criminals#
Part II—Interpretation
5 Interpretation
Unless the contrary intention appears:
person means a natural person, whether or not the person is or has ever been:
(a) an Australian citizen;
(b) a resident of Australia;
(c) a British subject;or
(d) a citizen of a country allied or associated with Australia in relation to the conduct of a war.
An Act to provide for the Trial and Punishment of War Criminals#
Part III—War crimes
13 Jurisdiction of courts and choice of law
(1) Section 68 of the Judiciary Act 1903 applies in relation to an offence against this Act as if a reference in that section to a Territory did not include a reference to an external Territory.
(2) Where a person is charged with an offence against this Act, then, for the purposes of:
(a) determining whether a court of a State or internal Territory has jurisdiction in relation to the offence;
(b) an exercise of jurisdiction by such a court in relation to the offence;
(c) a proceeding connected with such an exercise of jurisdiction; and
(d) an appeal arising out of, or out of a proceeding connected with, such an exercise of jurisdiction;
this Act has effect, in relation to an act that is, or is alleged to be, the offence, as if:
(e) a reference in subsection 6(3) or section 18 to a part of Australia were a reference to that State or Territory; and
(f) without limiting subsection 6(2), all defences under the law in force in that State or Territory when the person is charged with the offence had been defences under the law in force in that State or Territory at the time of the act.
(3) Where:
(a) it is sought in a proceeding for an offence against this Act to establish for the purposes of subsection 6(2) that a particular defence could have been established in a proceeding (in this subsection called the other proceeding) for an offence; and
(b) in the other proceeding, the onus of establishing the defence would have lain on the defendant;
then, in the first-mentioned proceeding, the onus of establishing that the defence could have been established in the other proceeding lies on the defendant.
(4) Nothing in Part II or subsection 9(1) shall be taken to exclude, limit or otherwise prejudice:
(a) the application in proceedings for offences against this Act of the normal rules of evidence and procedure that apply in proceedings for offences against the laws of the Commonwealth; or
(b) any of the powers of a court in respect of proceedings for offences against the laws of the Commonwealth, including, but not limited to, the powers of a court to take action to prevent an abuse of process.
(5) Where, on the trial of a person for an offence against this Act, the
person satisfies the judge, on the balance of probabilities, that:
(a) the person is unable to obtain evidence that he or she would, but for the lapse of time or some other reason beyond his or her control, have been able to obtain;
(b) the person’s inability to obtain that evidence has substantially prejudiced, or will substantially prejudice, the preparation or conduct of his or her defence; and
(c) the interests of justice require the making of an order under this subsection;
the judge may make such order as he or she thinks appropriate for a stay of proceedings for the offence.
(6) Nothing in subsections (4) and (5) limits the generality of anything else in those subsections.
An Act to amend the War Crimes Act 1945
3. The Preamble to the Principal Act is repealed and the following Preamble is substituted:
(b) it is appropriate that persons accused of such war crimes be brought to trial in the ordinary criminal courts in Australia;
An Act to amend the War Crimes Act 1945
5. Sections 3 to 14, inclusive, of the Principal Act are repealed and the following section and Parts are substituted:
11. A person shall not be charged with an offence against this Act unless
he or she is:
(a) an Australian citizen; or
(b) a resident of Australia or of an external Territory.
An Act to amend the War Crimes Act 1945
5. Sections 3 to 14, inclusive, of the Principal Act are repealed and the following section and Parts are substituted:
Who may prosecute
"12. An offence against this Act may only be prosecuted in the name of the Attorney-General or the Director of Public Prosecutions.
Jurisdiction of courts and choice of law
"13. (1) Section 68 of the Judiciary Act 1903 applies in relation to an offence against this Act as if a reference in that section to a Territory did not include a reference to an external Territory.
"(2) Where a person is charged with an offence against this Act, then, for the purposes of:
(a) determining whether a court of a State or internal Territory has jurisdiction in relation to the offence;
(b) an exercise of jurisdiction by such a court in relation to the offence;
(c) a proceeding connected with such an exercise of jurisdiction; and
(d) an appeal arising out of, or out of a proceeding connected with, such an exercise of jurisdiction;
this Act has effect, in relation to an act that is, or is alleged to be, the offence, as if:
(e) a reference in subsection 6 (3) or section 18 to a part of Australia were a reference to that State or Territory; and
(f) without limiting subsection 6 (2), all defences under the law in force in that State or Territory when the person is charged with the offence had been defences under the law in force in that State or Territory at the time of the act.
"(3) Where:
(a) it is sought in a proceeding for an offence against this Act to establish for the purposes of subsection 6 (2) that a particular defence could have been established in a proceeding (in this subsection called the 'other proceeding') for an offence; and
(b) in the other proceeding, the onus of establishing the defence would have lain on the defendant;
then, in the first-mentioned proceeding, the onus of establishing that the defence could have been established in the other proceeding lies on the
defendant.
"(4) Nothing in Part II or subsection 9 (1) shall be taken to exclude, limit or otherwise prejudice:
(a) the application in proceedings for offences against this Act of the normal rules of evidence and procedure that apply in proceedings for offences against the laws of the Commonwealth; or
(b) any of the powers of a court in respect of proceedings for offences against the laws of the Commonwealth, including, but not limited to, the powers of a court to take action to prevent an abuse of process.
"(5) Where, on the trial of a person for an offence against this Act, the person satisfies the judge, on the balance of probabilities, that:
(a) the person is unable to obtain evidence that he or she would, but for the lapse of time or some other reason beyond his or her control, have been able to obtain;
(b) the person's inability to obtain that evidence has substantially prejudiced, or will substantially prejudice, the preparation or conduct of his
or her defence; and
(c) the interests of justice require the making of an order under this
subsection;
the judge may make such order as he or she thinks appropriate for a stay of
proceedings for the offence.
"(6) Nothing in subsections (4) and (5) limits the generality of anything
else in those subsections.
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.