Criminal Code Amendment (War Crimes) Act 2016

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Legislation au C2016A00097 In force Act

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Criminal Code Amendment (War Crimes) Act 2016

 

No. 97, 2016

 

 

 

 

 

An Act to amend the Criminal Code Act 1995, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments relating to war crimes

Part 1—Members of organised armed groups

Criminal Code Act 1995

Part 2—Proportionality in non‑international armed conflict

Criminal Code Act 1995

Part 3—Minor technical amendment

Criminal Code Act 1995

Part 4—Application of amendments

 

 

 

Criminal Code Amendment (War Crimes) Act 2016

No. 97, 2016

 

 

 

An Act to amend the Criminal Code Act 1995, and for related purposes

[Assented to 7 December 2016]

The Parliament of Australia enacts:

1  Short title

  This Act is the Criminal Code Amendment (War Crimes) Act 2016.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

8 December 2016

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments relating to war crimes

Part 1—Members of organised armed groups

Criminal Code Act 1995

1  Paragraphs 268.70(1)(b) and (c) of the Criminal Code

Repeal the paragraphs, substitute:

 (b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 (c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

2  At the end of section 268.70 of the Criminal Code

Add:

 (3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

3  Paragraphs 268.71(1)(d) and (e) and (2)(d) and (e) of the Criminal Code

Repeal the paragraphs, substitute:

 (d) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 (e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

4  At the end of section 268.71 of the Criminal Code

Add:

 (4) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

5  Paragraphs 268.72(1)(b) and (c) of the Criminal Code

Repeal the paragraphs, substitute:

 (b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

 (c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

6  At the end of section 268.72 of the Criminal Code

Add:

 (3) For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.

7  At the end of Subdivision K of Division 268 of Chapter 8 of the Criminal Code

Add:

268.125  Meaning of civilian

  In this Division, the expression civilian does not include a person who is a member of an organised armed group.

Part 2—Proportionality in non‑international armed conflict

Criminal Code Act 1995

8  After subsection 268.70(1) of the Criminal Code

Insert:

 (1A) Subsection (1) does not apply if:

 (a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 (b) at the time the attack was launched:

 (i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 (ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

9  After subsection 268.71(1) of the Criminal Code

Insert:

 (1A) Subsection (1) does not apply if:

 (a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 (b) at the time the attack was launched:

 (i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 (ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

10  After subsection 268.71(2) of the Criminal Code

Insert:

 (2A) Subsection (2) does not apply if:

 (a) the serious endangerment of the physical or mental health, or integrity, of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 (b) at the time the attack was launched:

 (i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 (ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

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

11  After subsection 268.72(1) of the Criminal Code

Insert:

 (1A) Subsection (1) does not apply if:

 (a) the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

 (b) at the time the attack was launched:

 (i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

 (ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

Part 3—Minor technical amendment

Criminal Code Act 1995

12  Paragraph 268.65(1)(a) of the Criminal Code

Omit “military,”.

Part 4—Application of amendments

13  Application of amendments made by Part 1

The amendments made by Part 1 of this Schedule apply to conduct engaged in on or after the commencement of this item.

14  Application of amendments made by Parts 2 and 3

The amendments made by Parts 2 and 3 of this Schedule apply to conduct engaged in before, on or after the commencement of this item.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 12 October 2016

Senate on 24 November 2016]

 

(142/16)

 

Overview

The Criminal Code Amendment (War Crimes) Act 2016 was enacted by the Parliament of Australia to amend the Criminal Code Act 1995 and address specific issues related to war crimes, particularly concerning the conduct of members of organised armed groups and proportionality in non-international armed conflict. This Act introduces amendments to clarify the scope of war crimes by defining the circumstances under which members of organised armed groups can be prosecuted, and by establishing the principle of proportionality in attacks that may result in civilian casualties. The Act aims to ensure that Australian law aligns with international standards and obligations regarding war crimes, providing a legal framework to prosecute individuals for such offences. The amendments are designed to take effect from the date of Royal Assent, with certain provisions applying retroactively to conduct occurring before the Act's commencement.

Scope and Application

The Criminal Code Amendment (War Crimes) Act 2016 amends the Criminal Code Act 1995 to redefine certain provisions relating to war crimes. This Act applies to conduct engaged in on or after its commencement on 8 December 2016 for amendments in Part 1 and to conduct engaged in before, on, or after the commencement for amendments in Parts 2 and 3. The Act extends to all persons within the jurisdiction of Australia, including Australian citizens and permanent residents, regardless of where in the world the alleged war crime occurred. It targets offences concerning members of organised armed groups and proportionality in non-international armed conflicts, thereby imposing stricter criteria on what constitutes a war crime under Australian law. Notably, the Act includes technical amendments to refine the definitions and scope of certain offences. There are no stated exclusions, exemptions, or thresholds within the Act itself; however, the application and interpretation of these amendments may be further defined through subordinate instruments or judicial decisions.

Key Provisions

The Criminal Code Amendment (War Crimes) Act 2016 primarily amends the Criminal Code Act 1995 to address war crimes and related issues, particularly those involving members of organised armed groups and proportionality in non-international armed conflicts. The Act repeals and substitutes various paragraphs within sections 268.70, 268.71, and 268.72 of the Criminal Code, clarifying that these provisions apply only if the individuals involved are neither taking an active part in hostilities nor are members of an organised armed group, and the perpetrator is aware of, or reckless about, these circumstances. Additionally, it explicitly states that the term "members of an organised armed group" does not include those who are hors de combat. The Act also defines "civilian" to exclude members of an organised armed group. The amendments impose several obligations on individuals and entities governed by the Act. They must ensure that any attack on a military objective does not result in civilian casualties that are excessive in relation to the anticipated military advantage, unless the perpetrator did not expect such casualties and it was reasonable to hold this expectation at the time of the attack. Furthermore, the Act requires that any severe physical or mental pain or suffering inflicted on civilians during an attack on a military objective must be proportionate to the military advantage anticipated. This includes a requirement for the defendant to bear an evidential burden to demonstrate compliance with these provisions. Failure to comply with the provisions of the Criminal Code Amendment (War Crimes) Act 2016 can result in serious legal consequences. Engaging in conduct that violates the Act, such as targeting civilians or failing to adhere to the principles of proportionality, can lead to criminal charges. The maximum penalties for these offences can be severe, including lengthy imprisonment terms. For instance, the maximum penalty for intentionally killing a civilian during an armed conflict can be life imprisonment, reflecting the gravity of the offences under the Act. Additionally, the Act outlines specific evidential burdens for defendants, which, if not met, can also lead to adverse legal outcomes.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.