War Crimes Act 1945
No. 48, 1945
Compilation No. 5
Compilation date: 23 May 2018
Includes amendments up to: Act No. 34, 2018
Registered: 30 May 2018
About this compilation
This compilation
This is a compilation of the War Crimes Act 1945 that shows the text of the law as amended and in force on 23 May 2018 (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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part I—Preliminary
1 Short title
2 Commencement
3 Application
3A Application of the Criminal Code
Part II—Interpretation
4 Effect of this Part
5 Interpretation
6 Serious crimes
7 War crimes
8 Effect of sections 6 and 7
Part III—War crimes
9 War crime to be indictable offence
10 Punishment
11 Only Australian citizens or residents to be prosecuted
12 Who may prosecute
13 Jurisdiction of courts and choice of law
14 Objection to venue
15 Effect of order for change of venue
16 No defence of superior orders
17 Defence based on laws, customs and usages of war
18 Alternative verdicts
19 Legal assistance
20 Certain provisions enacted to avoid doubt
21 Reporting
Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
An Act to provide for the Trial and Punishment of War Criminals
Preamble
WHEREAS:
(a) concern has arisen that a significant number of persons who committed serious war crimes in Europe during World War II may since have entered Australia and became Australian citizens or residents;
(b) it is appropriate that persons accused of such war crimes be brought to trial in the ordinary criminal courts in Australia; and
(c)
Overview
The War Crimes Act 1945 was enacted to address the concern that individuals who had committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents. The Act was introduced to ensure that those accused of such war crimes could be tried in Australia's ordinary criminal courts and given a fair trial with appropriate safeguards. Enacted by the Commonwealth of Australia's Parliament, the Act aims to provide a legal framework for the trial and punishment of war criminals within the Australian jurisdiction. The Act delineates specific provisions for the prosecution of war crimes, including jurisdictional matters, the nature of the crimes, and the rights and defences available to accused persons.
Scope and Application
The War Crimes Act 1945 applies to all Australian citizens, residents of Australia or external Territories, and any natural person who may have committed war crimes in Europe between 1 September 1939 and 8 May 1945. The Act covers serious crimes committed in Australia or outside Australia, provided that the law of a part of Australia would have classified the act as a serious crime if it had been done in that part at the relevant time. The Act also extends to external territories and has extra-territorial operation according to its tenor, with Chapter 2 of the Criminal Code applying to all offences against this Act. The Act's provisions do not exclude, limit, or otherwise prejudice 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 any of the powers of a court in respect of proceedings for offences against the laws of the Commonwealth. The Attorney-General may provide legal and financial assistance to applicants under certain conditions. The Attorney-General must also prepare and present a report to Parliament about the operation of the Act during each financial year if an investigation of a suspected offence or a proceeding for an alleged offence under the Act is started or carried on during that year.
Key Provisions
- The War Crimes Act 1945 (Cth) sets out the legal framework for the trial and punishment of war crimes committed during the period of World War II, specifically between 1 September 1939 and 8 May 1945. The Act makes it an indictable offence to commit a war crime, defined as a serious crime committed during a war or occupation, or in pursuit of a war or occupation policy, or on behalf of or in the interests of a power conducting a war or engaged in an occupation (s 9). The Act applies to all external territories and has extra-territorial operation according to its tenor (s 3). The Act provides for the prosecution of war crimes by the Commonwealth Attorney-General or the Director of Public Prosecutions, and it sets out the jurisdiction of courts and choice of law provisions for the prosecution of war crimes (ss 12, 13).
- The Act imposes several obligations on parties and entities it governs. For instance, it requires that only Australian citizens or residents can be prosecuted under the Act (s 11). It also requires that the defence of superior orders is not available to a person accused of committing a war crime, but may be taken into account in determining the proper sentence if the person is convicted (s 16). Additionally, the Act requires that the Attorney-General must cause a report about the operation of the Act during each financial year to be prepared and laid before each House of the Parliament (s 21).
- The Act provides for various penalties and consequences for breach of its provisions. The punishment for an offence involving the wilful killing of a person is imprisonment for life or for any lesser term. The punishment for any other offence is imprisonment for not more than 25 years (s 10). Failure to comply with the Act's provisions may result in criminal or civil liability, depending on the nature and severity of the breach. In addition, the Act provides for alternative verdicts in certain circumstances, where a jury may find the accused not guilty of the offence charged but guilty of a different offence (s 18). The Act also provides for legal and financial assistance to be provided to persons charged with an offence under the Act, subject to certain conditions (s 19).
- Area of Law
- Criminal Law
- Instrument
- Act
- Concepts
- Offence Provisions
- Definitions & Interpretation
- Commencement Provisions
- Prohibited Conduct
- Jurisdiction of courts and choice of law
- Enforcement Powers
- Civil Penalty Provisions
- Reporting & Disclosure Obligations
