Criminal Code Amendment (United Nations and Associated Personnel) Act 2000

No. 124, 2000

An Act to protect United Nations and associated personnel, and for related purposes

[Assented to26 October 2000]

The Parliament of Australia enacts:

This Act may be cited as the Criminal Code Amendment (United Nations and Associated Personnel) Act 2000.

(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

Criminal Code Act 1995

1 The Schedule (after Division 70 of Chapter 4 of the Criminal Code)

Insert:

Division 71—Offences against United Nations and associated personnel

71.1 Purpose

The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.

71.2 Murder of a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes the death of another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for life.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.3 Manslaughter of a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes the death of another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for 25 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.4 Intentionally causing serious harm to a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes serious harm to another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for 20 years.

Maximum penalty (aggravated offence): Imprisonment for 25 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.5 Recklessly causing serious harm to a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes serious harm to another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 19 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.6 Intentionally causing harm to a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes harm to another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for 10 years.

Maximum penalty (aggravated offence): Imprisonment for 13 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.7 Recklessly causing harm to a UN or associated person

(1) A person is guilty of an offence if:

(a) the person’s conduct causes harm to another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.

Maximum penalty: Imprisonment for 7 years.

Maximum penalty (aggravated offence): Imprisonment for 9 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.8 Unlawful sexual penetration

(1) A person is guilty of an offence if:

(a) the person sexually penetrates another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.

Maximum penalty: Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 20 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

(3) In this section:

sexually penetrate means:

(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or

(b) penetrate (to any extent) the mouth of a person by the penis of another person; or

(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.

(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

71.9 Kidnapping a UN or associated person

(1) A person is guilty of an offence if:

(a) the person takes or detains another person without his or her consent; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:

(i) holding him or her to ransom or as a hostage; or

(ii) taking or sending him or her out of the country; or

(iii) committing a serious offence against him or her or another person.

Maximum penalty: Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 19 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.

71.10 Unlawful detention of UN or associated person

(1) A person is guilty of an offence if:

(a) the person takes or detains another person without that other person’s consent; and

(b) that other person is a UN or associated person; and

Maximum penalty: Imprisonment for 5 years.

Maximum penalty (aggravated offence): Imprisonment for 6 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.11 Intentionally causing damage to UN or associated person’s property etc.

(1) A person is guilty of an offence if:

(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and

(b) the property is occupied or used by a UN or associated person; and

(d) that person is the UN or associated person referred to in paragraph (b); and

(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and

(f) the first‑mentioned person intends to cause the damage to the property; and

(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).

Maximum penalty: Imprisonment for 10 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b), (d) and (e).

71.12 Threatening to commit other offences

A person is guilty of an offence if the person:

(a) threatens to commit an offence (the threatened offence) under any of sections 71.2 to 71.11; and

(b) intends to compel any other person to do or omit to do an act by making the threat.

Maximum penalty:

(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or

(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or

(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or

(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.

Note: Section 71.23 defines UN or associated person.

71.13 Aggravated offences

(1) For the purposes of this Division, an offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:

(a) the offence was committed during torture; or

(b) the offence was committed by the use or threatened use of an offensive weapon; or

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.

(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).

(4) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

torture means the deliberate and systematic infliction of severe pain over a period of time.

71.14 Defence—activities involving serious harm

A person is not criminally responsible for an offence against section 71.4 or 71.5 if the conduct causing serious harm to another person is engaged in by the first‑mentioned person:

(a) for the purpose of benefiting the other person or in pursuance of a socially acceptable function or activity; and

(b) having regard to the purpose, function or activity, the conduct was reasonable.

Note 1: If a person causes less than serious harm to another person, the prosecution is obliged to prove that the harm was caused without the consent of the person harmed (see for example section 71.6).

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

71.15 Defence—medical or hygienic procedures

A person is not criminally responsible for an offence against section 71.8 in respect of any sexual penetration carried out in the course of a procedure in good faith for medical or hygienic purposes.

Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

71.16 Jurisdictional requirement

(1) A person commits an offence under this Division only if:

(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:

(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

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

(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or

(d) 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) In this section:

Australian aircraft means:

(a) an aircraft registered, or required to be registered, under the Civil Aviation Regulations as an Australian aircraft; or

(b) an aircraft (other than a defence aircraft) that is owned by, or in the possession or control of, a Commonwealth entity; or

Australian ship means:

(a) a ship registered, or required to be registered, under the Shipping Registration Act 1981; or

(b) an unregistered ship that has Australian nationality; or

defence aircraft means an aircraft of any part of the Australian Defence Force, and includes an aircraft that is being commanded or piloted by a member of that Force in the course of his or her duties as such a member.

defence ship means a ship of any part of the Australian Defence Force, and includes a ship that is being operated or commanded by a member of that Force in the course of his or her duties as such a member.

71.17 Exclusion of this Division if State/Territory laws provide for corresponding offences

(1) A State or Territory court does not have jurisdiction to determine a charge of an offence under this Division if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory.

(2) If:

(a) a prosecution is brought against a person under this Division; and

(b) a court finds that there is a corresponding State offence;

then this section does not prevent the person from being prosecuted for the State offence.

71.18 Double jeopardy

If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct.

71.19 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

71.20 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.

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

71.21 Ministerial certificates relating to proceedings

(1) The Minister for Foreign Affairs may issue a certificate stating any of the following matters:

(a) the Convention entered into force for Australia on a specified day;

(b) the Convention remains in force for Australia or any other State Party on a specified day;

(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of article 10 of the Convention;

(d) a matter relevant to whether a person is or was a UN or associated person;

(e) a matter relevant to whether an operation is or was a UN operation.

(2) The Minister for Immigration and Multicultural Affairs may issue a certificate stating that:

(a) a person is or was an Australian citizen at a particular time; or

(b) a person is or was a stateless person whose habitual residence is or was in Australia.

(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

71.22 Jurisdiction of State courts preserved

For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Act, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.

71.23 Definitions

(1) In this Division:

associated personnel means:

(a) persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations; or

(b) persons engaged by the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency; or

(c) persons deployed by a humanitarian non‑governmental organisation or agency under an agreement with the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency;

to carry out activities in support of the fulfilment of the mandate of a UN operation.

Convention means the Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 December 1994.

Note: The text of the Convention is set out in Australian Treaty Series 1995 No. 1. In 2000 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world‑wide web site.

UN enforcement action means a UN operation:

(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and

(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and

UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:

(a) the operation is for the purpose of maintaining or restoring international peace and security; or

(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.

UN or associated person means a person who is a member of any UN personnel or associated personnel.

UN personnel means:

(a) persons engaged or deployed by the Secretary‑General of the United Nations as members of the military, police or civilian components of a UN operation; or

(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.

(2) In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.

2 The Dictionary of the Criminal Code

Insert:

death means:

(a) the irreversible cessation of all function of a person’s brain (including the brain stem); or

(b) the irreversible cessation of circulation of blood in a person’s body.

3 The Dictionary of the Criminal Code

Insert:

detaining a person includes causing the person to remain where he or she is.

4 The Dictionary of the Criminal Code

Insert:

harm means physical harm or harm to a person’s mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

5 The Dictionary of the Criminal Code

Insert:

harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

6 The Dictionary of the Criminal Code

Insert:

physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

7 The Dictionary of the Criminal Code

Insert:

serious harm means harm (including the cumulative effect of any harm):

(a) that endangers, or is likely to endanger, a person’s life; or

(b) that is or is likely to be significant and longstanding.

8 The Dictionary of the Criminal Code

Insert:

sexually penetrate is defined in section 71.8.

9 The Dictionary of the Criminal Code

Insert:

taking a person includes causing the person to accompany another person and causing the person to be taken.