Document ID: chunk:federal_register_of_legislation:C2004A00993:clause:1_2:p47
Version: federal_register_of_legislation:C2004A00993
Segment Type: clause
Provision Reference: sch 1 cl 2 (pt 47/48)
Character Range: 120225–123143

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 sitting in Australia.

Penalty: Imprisonment for 2 years.

 (2) In this section:

Australia includes all the external Territories.

268.120  Saving of other laws

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

268.121  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) An offence against this Division may only be prosecuted in the name of the Attorney‑General.

 (3) 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.

268.122  Attorney‑General's decisions in relation to consents to be final

 (1) Subject to any jurisdiction of the High Court under the Constitution, a decision by the Attorney‑General to give, or to refuse to give, a consent under section 268.121:
 (a) is final; and
 (b) must not be challenged, appealed against, reviewed, quashed or called in question; and
 (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.

 (2) The reference in subsection (1) to a decision includes a reference to the following:
 (a) a decision to vary, suspend,