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.

14.1 Standard geographical jurisdiction

(1) This section may apply to a particular offence in either of the following ways:

(a) unless the contrary intention appears, this section applies to the following offences:

(i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;
(ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);

(b) if a law of the Commonwealth provides that this section applies to a particular offence—this section applies to that offence.

Note: In the case of paragraph (b), the expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

(2) If this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(c) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct,occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Defence—primary offence

(3) If this section applies to a particular offence, a person does not commit the offence if:

(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) there is not in force in:

(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the firstmentioned offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).

(4) For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(5) If this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).

(6) For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.

15.1 Extended geographical jurisdiction—category A

(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(c) the conduct constituting the alleged offence occurs wholly outside Australia and:

(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(d) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

15.1 Extended geographical jurisdiction—category A

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if: (aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(c) there is not in force in:

(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the firstmentioned offence.

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

15.2 Extended geographical jurisdiction—category B

(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(c) the conduct constituting the alleged offence occurs wholly outside Australia and:

(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(d) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if: (aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(b) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(c) there is not in force in:

(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the firstmentioned offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).

(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

15.3 Extended geographical jurisdiction—category C

(1) 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.

15.3 Extended geographical jurisdiction—category C

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if: (aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(c) there is not in force in:

(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the firstmentioned offence.

15.3 Extended geographical jurisdiction—category C

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

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.

16.1 AttorneyGeneral’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances

(1) Proceedings for an offence must not be commenced without the AttorneyGeneral’s written consent if:

(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country; and
(c) at the time of the alleged offence, the person alleged to have committed the offence is neither:

(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence before the necessary consent has been given.

16.2 When conduct taken to occur partly in Australia Sending things

(1) For the purposes of this Part, if a person sends a thing, or causes a thing to be sent:

(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia.

Sending electronic communications

(2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:

(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia.

72.4 Jurisdictional requirement

(1) A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian aircraft;

(b) at the time of the alleged offence, the person is an Australian citizen;

(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;

(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;

(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;

(f) the alleged offence is committed against:

(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;

(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.

(2) The circumstances relating to the alleged offence are exclusively internal if:

(a) the conduct constituting the alleged offence occurs wholly within Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are Australian citizens or bodies corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction in relation to the conduct.

80.4 Extended geographical jurisdiction for offences

(1) Subject to subsection (2), section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

(2) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against section 80.1AC or subsection 80.2A(2), 80.2B(2) or 80.2C(1).

115.1 Murder of an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the firstmentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia or any other person by the conduct; and
(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.

115.1 Murder of an Australian citizen or a resident of Australia

(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:

(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by a term of imprisonment (other than imprisonment for life)—a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise—a maximum penalty of imprisonment for life.

(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for life.

115.2 Manslaughter of an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the firstmentioned person intends that the conduct will cause serious harm, or is reckless as to a risk that the conduct will cause serious harm, to the Australian citizen or resident of Australia or any other person; and
(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.

115.2 Manslaughter of an Australian citizen or a resident of Australia

(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:

(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by imprisonment for a term of less than 25 years—a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise—a maximum penalty of imprisonment for a term of not more than 25 years.

(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for a term of not more than 25 years.

115.8 Geographical jurisdiction

Each offence against this Division applies:

(a) whether or not a result of the conduct constituting the alleged offence occurs in Australia; and
(b) if the alleged offence is an ancillary offence and the conduct to which the ancillary offence relates occurs outside Australia—whether or not the conduct constituting the ancillary offence occurs in Australia.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts
(1) A person commits an offence if:

(a) the person engages in conduct (whether within or outside Australia); and
(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and
(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Accumulating weapons etc.
(2) A person commits an offence if:

(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and
(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and
(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Providing or participating in training
(3) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) providing military training to another person;
(ii) participating in providing military training to another person;
(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and

(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

(4) A person commits an offence if:

(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):

(i) allowing military training to be provided to himself or herself;
(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and

(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Giving or receiving goods and services to promote the commission of an offence
(5) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) giving money or goods to, or performing services for, any other person, body or association;
(ii) receiving or soliciting money or goods, or the performance of services; and

(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

119.5 Allowing use of buildings, vessels and aircraft to commit offences

Use of buildings
(1) A person commits an offence if:

(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and
(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and
(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the meeting to be so held, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

119.5 Allowing use of buildings, vessels and aircraft to commit offences

Use of vessels or aircraft
(2) A person commits an offence if:

(a) the person is:

(i) an owner, charterer, lessee, operator, agent or master of a vessel; or
(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and

(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and

(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and

(d) when the person permits the use, the person:

(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

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".

3 Application

This Act extends to all external Territories and has extra-territorial operation according to its tenor.

6 Serious crimes

(1) An act is a serious crime if it was done in a part of Australia and was, under the law then in force in that part, an offence, being:

(a) murder;
(b) manslaughter;
(c) causing grievous bodily harm;
(d) wounding;
(e) rape;
(f) indecent assault;
(g) abduction, or procuring, for immoral purposes;

(h) an offence (in this paragraph called the variant offence) that would be referred to in a preceding paragraph if that paragraph contained a reference to:
(i) a particular intention or state of mind on the offender’s part; or
(ii) particular circumstances of aggravation;
necessary to constitute the variant offence;

(j) an offence whose elements are substantially the same as the elements of an offence referred to in any of paragraphs (a) to (h), inclusive; or

(k) an offence of:
(i) attempting or conspiring to commit;
(ii) aiding, abetting, counselling or procuring the commission of; or
(iii) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of;
an offence referred to in any of paragraphs (a) to (j), inclusive.

11 Only Australian citizens or residents to be prosecuted

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.

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.

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.