War Crimes Amendment Act 1988
No. 3 of 1989
TABLE OF PROVISIONS
Section
1. Short title etc.
2. Commencement
3. Substitution of Preamble
4. Insertion of heading
5. Repeal of sections 3 to 14 and substitution of new section and Parts:
3. Application
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. Annual report
22. Persons accused of war crimes not to be extradited unless prima facie case established
War Crimes Amendment Act 1988
No. 3 of 1989
An Act to amend the War Crimes Act 1945
[Assented to 25 January 1989]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
Short title etc.
1. (1) This Act may be cited as the War Crimes Amendment Act 1988.
(2) In this Act, “Principal Act” means the War Crimes Act 19451.
Commencement
2. This Act shall come into operation on the day on which it receives the Royal Assent.
Substitution of Preamble
3. The Preamble to the Principal Act is repealed and the following Preamble is substituted:
“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) it is also essential in the interests of justice that persons so accused be given a fair trial with all the safeguards for accused persons in trials in those courts, having particular regard to matters such as the gravity of the allegations and the lapse of time since the alleged crimes:”.
Insertion of heading
4. Before section 1 of the Principal Act the following heading is inserted:
“PART I—PRELIMINARY”.
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 Sections 3 to 14, inclusive, of the Principal Act are repealed and the following section and Parts are substituted: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.
“PART II—INTERPRETATION
Effect of this Part
“4. The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act.
Interpretation
“5. Unless the contrary intention appears:
‘act’ includes omission;
‘do’ includes make;
‘occupation’ means:
(a) an occupation of territory arising out…
Overview
The War Crimes Amendment Act 1988 (Cth) was enacted to address the issue of individuals who may have committed serious war crimes during World War II entering Australia and becoming citizens or residents. This Act amends the War Crimes Act 1945 (Cth) to enhance the capacity of the Australian legal system to prosecute war crimes committed between 1 September 1939 and 8 May 1945, particularly those who had entered Australia post-war. Enacted by the Parliament of Australia, the policy objective of this Act is to ensure that individuals accused of war crimes can be brought to trial in Australian courts and to provide a framework that ensures these trials are conducted fairly and effectively, taking into account the passage of time and the potential difficulties in gathering evidence.
Scope and Application
The War Crimes Amendment Act 1988No. 3 of 1989 applies to individuals who have committed war crimes in Europe during World War II, specifically between 1 September 1939 and 8 May 1945, and who may have subsequently entered Australia and become citizens or residents. The Act has extra-territorial operation and extends to all external territories. It primarily targets Australian citizens or residents, aiming to ensure that those accused of war crimes are prosecuted in Australian criminal courts, ensuring they receive a fair trial with all necessary safeguards. The Act delineates specific war crimes, including acts committed during hostilities, occupations, or as part of persecution policies, and establishes these as indictable offences. Prosecutions can only be conducted by the Attorney-General or the Director of Public Prosecutions, with courts having jurisdiction over these offences as if they were committed within the respective state or territory. The Act also addresses procedural matters, including the ability to change the venue of proceedings, the prohibition of the defence of superior orders, and provisions for alternative verdicts and legal assistance for accused persons. Additionally, it mandates an annual report on the Act's operation and stipulates that extradition for war crimes is contingent on establishing a prima facie case.
Key Provisions
- The War Crimes Amendment Act 1988 (Cth) modifies the War Crimes Act 1945 (Cth) by broadening the scope and penalties for war crimes committed during World War II. Section 9 (1) establishes that any person who commits a war crime between 1 September 1939 and 8 May 1945 is guilty of an indictable offence. A war crime, as defined in Section 7, is a serious crime committed during hostilities, an occupation, or as part of a policy associated with a war or occupation. It also includes acts committed with intent to destroy a national, ethnic, racial or religious group. The punishment for a war crime involving the wilful killing of a person is imprisonment for life or any lesser term, while other war crimes carry a maximum penalty of 25 years imprisonment (Section 10). The Act specifies that only Australian citizens or residents can be prosecuted for these offences (Section 11). Prosecutions must be brought by the Attorney-General or the Director of Public Prosecutions (Section 12). The courts' jurisdiction and applicable law are outlined in Section 13, which allows for proceedings in state or territory courts under specific conditions. Defendants have the right to object to the venue of their trial and may apply for a change of venue under Section 14. The defence of acting under superior orders is not permissible, though it may be considered during sentencing (Section 16). Defendants can argue that their actions were permitted under the laws, customs, and usages of war, provided there is evidence to support this claim (Section 17). Juries may consider alternative charges if they find the defendant guilty of a lesser but related offence (Section 18). Individuals charged with war crimes can apply for legal assistance from the Attorney-General, who may grant legal or financial aid under certain conditions (Section 19). The Attorney-General is also mandated to prepare and submit an annual report on the Act's operation to Parliament (Section 21). Lastly, the Act stipulates that extradition of individuals accused of war crimes is contingent upon the establishment of a prima facie case (Section 22).
- Area of Law
- Criminal Law
- International Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Prohibited Conduct
- Extraterritorial Application
