ASSOCIATION FOR THE PREVENTION OF TORTURE
COUNTRY FILE - AUSTRALIA - SEPT 2010
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
1
Country File
AUSTRALIA
Last updated: September 2010
Region Asia Pacific
Legal system Common law
UNCAT Ratification/
Accession (a)/
succession (d)
8 August 1989
Relevant Laws Federal laws:
Criminal Code Act 1995 - as amended by the Crimes
Legislation Amendment (Torture Prohibition and
Death Penalty Abolition) Act 2010
State laws:
Crimes Act 1900 – Australian Capital Territory
Criminal Code Act of 1899 – Queensland
Criminal Code Act of 2007 – Norfolk Island
Relevant Articles Federal laws
Prohibition of Torture:
Definition of Torture: Sections 268.13, 268.25,
268.73, 274.1, 274.2 of the Criminal Code Act 1995
Penalties: Sections 268.13, 268.25, 268.73, 274.2,
274.4 of the Criminal Code Act 1995
Others:
1. Defences: Section 274.4 of the Criminal Code
Act 1995
2. Jurisdiction: Sections 15.4 and 274.2(5) of the
Criminal Code Act 1995
3. Lawful Sanctions: Section 274.2(5) of the
Criminal Code Act 1995
State laws
Prohibition of Torture:
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
2
Definition of Torture:
- Section 36 of the Crimes Act 1900 (ACT)
- Section 320A of the Criminal Code Act (QLD)
- Section 95 of the Criminal Code Act 2007
(Norfolk Island)
Penalties:
- Section 36 of the Crimes Act 1900 (ACT)
- Section 320A of the Criminal Code Act (QLD)
- Section 95 of the Criminal Code Act 2007
(Norfolk Island)
Others:
1. Lawful Sanctions: Section 36 Crimes Act
1900 (ACT)
Languages Available English (official language)
Other Relevant
Information
Legislative sources:
Australian federal legislation is available at:
http://www.comlaw.gov.au/
Australian Capital Territory Legislation is
available at: http://www.legislation.act.gov.au/
Queensland legislation is available at:
http://www.legislation.qld.gov.au/OQPChome.h
tm
Norfolk Island legislation is available at:
http://www.info.gov.nf/
UN Committee against Torture
For comments and recommendations on the
legislation of Australia by the UN Committee against
Torture, see
http://www2.ohchr.org/english/bodies/cat/sessions.htm
Please note that these comments may have been rendered obsolete by
more recent changes to the State party’s law and/or practice. APT
strongly recommends verification with official sources.
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
3
Relevant Articles – AUSTRALIA
ENGLISH
Criminal Code Act 1995 - as amended by the Crimes Legislation
Amendment (Torture Prohibition and Death Penalty Abolition) Act
2010
Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 6 Cases where fault elements are not required
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of the physical elements of
the offence; and
(b) the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies to a
particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is available in
relation to that physical element.
(3) The existence of strict liability does not make any other defence
unavailable.
6.2 Absolute liability
(1) If a law that creates an offence provides that the offence is an offence
of absolute liability:
(a) there are no fault elements for any of the physical elements of
the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to
a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in
relation to that physical element.
(3) The existence of absolute liability does not make any other defence
unavailable.
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
4
Part 2.3 Circumstances in which there is no criminal
responsibility
Division 9 Circumstances involving mistake or ignorance
9.2 Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical
element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical
element, the person considered whether or not facts existed,
and is under a mistaken but reasonable belief about those facts;
and
(b) had those facts existed, the conduct would not have constituted
an offence.
(2) A person may be regarded as having considered whether or not facts
existed if:
(a) he or she had considered, on a previous occasion, whether
those facts existed in the circumstances surrounding that
occasion; and
(b) he or she honestly and reasonably believed that the
circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous
occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
Part 2.7 Geographical jurisdiction
Division 15 Extended geographical jurisdiction
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.
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).
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 C Crimes against humanity
268.13 Crime against humanity - torture
A person (the perpetrator) commits an offence if:
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
5
(a) the perpetrator inflicts severe physical or mental pain or suffering upon
one or more persons who are in the custody or under the control of the
perpetrator; and
(b) the pain or suffering does not arise only from, and is not inherent in or
incidental to, lawful sanctions; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
Subdivision D War crimes that are grave breaches of the Geneva
Conventions and of Protocol I to the Geneva
Conventions
268.25 War crime - torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or
suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
(e) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(c).
Subdivision F War crimes that are serious violations of article 3
common to the Geneva Conventions and are
committed in the course of an armed conflict that is
not an international armed conflict
268.73 War crime - torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or
suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are not taking an active part in the
hostilities; and
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
6
(d) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not
taking an active part in the hostilities; and
(e) the perpetrator’s conduct takes place in the context of, and is
associated with, an armed conflict that is not an international
armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons
who are not taking an active part in the hostilities includes a reference
to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
Division 274 Torture
274.1 Definitions
(1) In this Division:
Convention means the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment adopted by the
General Assembly of the United Nations at New York on 10 December
1984.
(2) An expression that is used both in this Division and in the Convention
(whether or not a particular meaning is given to it by the Convention)
has, in this Division, the same meaning as it has in the Convention.
274.2 Torture
(1) A person (the perpetrator) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or
suffering on a person (the victim); and
(b) the conduct is engaged in:
(i) for the purpose of obtaining from the victim or from a third
person information or a confession; or
(ii) for the purpose of punishing the victim for an act which
the victim or a third person has committed or is suspected
of having committed; or
(iii) for the purpose of intimidating or coercing the victim or a
third person; or
(iv) for a purpose related to a purpose mentioned in
subparagraph (i), (ii) or (iii); and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or
acquiescence, of a public official or other person acting in
an official capacity.
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
7
Penalty: Imprisonment for 20 years.
(2) A person (the perpetrator) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or
suffering on a person; and
(b) the conduct is engaged in for any reason based on
discrimination of any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or
acquiescence, of a public official or other person acting in
an official capacity.
Penalty: Imprisonment for 20 years.
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c).
Note: For absolute liability, see section 6.2.
(4) Subsections (1) and (2) do not apply to conduct arising only from,
inherent in or incidental to lawful sanctions that are not inconsistent
with the Articles of the International Covenant on Civil and Political
Rights (a copy of the English text of which is set out in Schedule 2 to
the Australian Human Rights Commission Act 1986).
(5) Section 15.4 (extended geographical jurisdiction—category D) applies
to an offence against subsection (1) or (2).
274.3 Prosecutions
(1) Proceedings for an offence against this Division, where the conduct
constituting the alleged offence occurs wholly outside Australia, must
not take place except with the consent in writing of the Attorney-
General.
(2) Even though a consent in accordance with subsection (1) has not been
given in relation to an offence against this Division:
(a) a person may be arrested for the offence, and a warrant for the
arrest of a person for the offence may be issued and executed;
and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no further step in proceedings referred to in subsection (1) is to be
taken until such a consent has been given.
(3) Subsection (2) does not prevent the discharge of the accused if
proceedings are not continued within a reasonable time.
274.4 No defence of exceptional circumstances or superior orders
It is not a defence in a proceeding for an offence under this Division that:
(a) the conduct constituting the offence was done out of necessity arising
from the existence of a state of war, a threat of war, internal political
instability, a public emergency or any other exceptional circumstance;
or
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
8
(b) in engaging in the conduct constituting the offence the accused acted
under orders of a superior officer or public authority;
but the circumstances referred to in paragraphs (a) and (b) may, if the
accused is convicted of the offence, be taken into account in determining the
proper sentence.
274.5 Jurisdiction of State/Territory courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising
under this Division, including a question of interpretation of the Convention, is
taken not to be a matter arising directly under a treaty.
274.6 Concurrent operation intended
This Division is not intended to exclude or limit the concurrent operation of any
other law of the Commonwealth or any law of a State or Territory.
274.7 Double jeopardy
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence under this Division in respect of that
conduct.
Crimes Act 1900 – ACT
Part 2 Offences against the person
Section 36 Torture
(1) In this section:
act of torture means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person—
(a) for such purposes as—
(i) obtaining from the person or from a third person
information or a confession; or
(ii) punishing the person for an act that the person or a third
person has committed or is suspected of having
committed; or
(iii) intimidating or coercing the person or a third person; or
(b) for any reason based on discrimination of any kind;
but does not include an act arising only from, inherent in or
incidental to, lawful sanctions that are not inconsistent with the
articles of the International Covenant on Civil and Political Rights
(being the covenant a copy of the English text of which is set out
in the Human Rights and Equal Opportunity Commission Act
1986 (Cwlth), schedule 2.
(2) A person who—
(a) is a public employee or acting in an official capacity; or
(b) is acting at the instigation, or with the consent or acquiescence,
of a public employee or a person acting in an official capacity;
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
9
and who commits an act of torture is guilty of an offence punishable, on
conviction, by imprisonment for 10 years.
Criminal Code Act of 1899 – Queensland
Schedule 1 The Criminal Code
Part 5 Offences against the person and relating to marriage
and parental rights and duties
Chapter 29 Offences endangering life or health
Section 320A Torture
(1) A person who tortures another person commits a crime.
Maximum penalty—14 years imprisonment.
(2) In this section—
pain or suffering includes physical, mental, psychological or emotional
pain or suffering, whether temporary or permanent.
torture means the intentional infliction of severe pain or suffering on a
person by an act or series of acts done on 1 or more than 1 occasion.
Criminal Code Act of 2007 – Norfolk Island
Chapter 3 Offences against the person
Part 3.3 Offences endangering life and health
Section 95 Torture
(1) In this section:
act of torture means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person–
(a) for such purposes as–
(i) obtaining from the person or from a third person
information or a confession; or
(ii) punishing the person for an act that the person or a third
person has committed or is suspected of having
committed; or
(iii) intimidating or coercing the person or a third person; or
(b) for any reason based on discrimination of any kind;
but does not include an act arising only from, inherent in or incidental
to, lawful sanctions that are not inconsistent with the articles of the
International Covenant on Civil and Political Rights (being the covenant
a copy of the English text of which is set out in the Human Rights and
Equal Opportunity Commission Act 1986 (Cwlth), Schedule 2.
(2) A person who–
(a) is a public employee or acting in an official capacity; or
Association for the Prevention of Torture (APT) www.apt.ch
For any suggestions and/or comments, please contact us at laws@apt.ch.
The APT does not guarantee that this data constitutes the latest applicable laws and/or that it represents the entire
national legal framework related to torture. The contents and use of this material, including links, do not imply any
responsibility from the part of the APT.
10
(b) is acting at the instigation, or with the consent or acquiescence,
of a public employee or a person acting in an official capacity;
and who commits an act of torture is guilty of an offence punishable, on
conviction, by imprisonment for 10 years.
