Document ID: chunk:federal_register_of_legislation:C2025C00060:section:8:p263
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 8 (pt 263/268)
Character Range: 1037958–1040865

their commission or to submit the matter to the competent authorities for investigation and prosecution.
 (3) With respect to superior and subordinate relationships not described in subsection (2), a superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over those subordinates, where:
 (a) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and
 (b) the offences concerned activities that were within the effective responsibility and control of the superior; and
 (c) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

268.116  Defence of superior orders
 (1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
 (2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
 (3) It is a defence to a war crime that:
 (a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
 (b) the person was under a legal obligation to obey the order; and
 (c) the person did not know that the order was unlawful; and
 (d) the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in subsection (3). See subsection 13.3(3).

268.117  Geographical jurisdiction
 (1) Section 15.4 (extended geographical jurisdiction—Category D) applies to genocide, crimes against humanity and war crimes.
 (2) Section 15.3 (extended geographical jurisdiction—Category C) applies to crimes against the administration of the justice of the International Criminal Court.

268.118  Double jeopardy
  A person cannot be tried by a federal court or a court of a State or Territory for an offence under this Division if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence under this Division.

268.119  Offences related to exercise of jurisdiction of International Criminal Court
 (1) A person must not:
 (a) intentionally contravene an order that the International Criminal Court makes while sitting in Australia; or
 (b) otherwise intentionally hinder the International Criminal Court in performing its functions while