CRIMES (TORTURE) ACT 1988 No. 148, 1988
CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - LONG TITLE
An Act to give effect to certain provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and for related purposes CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 1 Short title
(Assented to 26 December 1988) 1. This Act may be cited as the Crimes (Torture) Act 1988. (Minister's second reading speech made in- House of Representatives on 23 March 1988 Senate on 21 April 1988) CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 2 Commencement
2. This Act commences on a day to be fixed by Proclamation. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 3 Interpretation
3. (1) In this Act, unless the contrary intention appears: "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; (ii) punishing the person for an act which that 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 any such 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 Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986); "Australia" includes the external Territories; "Convention" means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations on 10 December 1984, a copy of the English text of which is set out in the Schedule. (2) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Act, the same meaning as it has in the Convention. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 4 Application
4. This Act extends to all external Territories and has extra-territorial operation according to its tenor. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 5 Effect of this Act on other laws
5. (1) Except as provided by this section, this Act is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
(2) Where any conduct by a person is both an offence against this Act and an offence against any other law referred to in subsection (1) and the person is convicted or acquitted of either of those offences, that person is not liable to be convicted of the other of those offences.
(3) Where 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, that person is not liable to be convicted of an offence against this Act in respect of that conduct. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 6 Offence of torture
6. (1) Where: (a) at any time after the commencement of this Act, a person who: (i) is a public official or is acting in an official capacity; or (ii) is acting at the instigation, or with the consent or acquiescence, of a public official or person acting in an official capacity; does outside Australia an act that is an act of torture; and (b) that act, if done by the person at that time in a part of Australia, would constitute an offence against the law then in force in that part of Australia; the person is guilty of an offence against this Act, punishable, upon conviction, by the same penalty as would be applicable if the person were found guilty of the offence referred to in paragraph (b). (2) In determining for the purposes of subsection (1) whether or not an act is or was, under the law in force at a particular time in a part of Australia, an offence of a particular kind, regard shall be had to any defence under that law that can be or could have been established in a proceeding for the offence. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 7 Only Australian citizens or persons present in Australia may be prosecuted

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7. A person shall not be charged with an offence against this Act unless the person: (a) is an Australian citizen; or (b) is present in Australia. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 8 Prosecutions
8. (1) Proceedings for an offence against this Act shall not take place except with the consent in writing of the Attorney-General. (2) Notwithstanding that a consent in accordance with subsection (1) has not been given in relation to an offence against this Act: (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; (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) shall be taken until such a consent has been given. (3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 9 Jurisdiction of courts and choice of law
9. (1) Where a person is charged with an offence against this Act, then, for the purposes of: (a) determining whether a court of a State or Territory has jurisdiction in relation to the offence; (b) an exercise of jurisdiction by such a court in relation to the offence; (c) a proceeding connected with such an exercise of jurisdiction; and (d) an appeal arising out of, or out of a proceeding connected with, such an exercise of jurisdiction; this Act has effect, in relation to an act that is, or is alleged to be, the offence, as if a reference in subsection 6 (1) or section 10 to a part of Australia were a reference to that State or Territory. (2) Where: (a) it is sought in a proceeding for an offence against this Act to establish for the purposes of subsection 6 (2) that a particular defence could have been established in a proceeding (in this subsection called the "other proceeding") for an offence; and (b) in the other proceeding, the onus of establishing the defence would have been on the accused; then, in the first-mentioned proceeding, the onus of establishing that the defence could have been established in the other proceeding lies on the accused. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 10 Alternative verdicts
10. (1) Where: (a) a person is charged with an offence against this Act; (b) the offence is alleged to be an act that, under the law in force in a part of Australia at the time (in this subsection called the "relevant time") when the act was alleged to have been done, would have constituted an offence of a particular kind if it had been done in that part of Australia at the relevant time; (c) on the person's trial for the offence, the jury: (i) is not satisfied that the person is guilty of the offence charged; and (ii) is satisfied that the person is guilty of a different offence against this Act (in this section called the "alternative offence") because the person has done an act that, under the law in force in that part of Australia at the relevant time, would, if it had been done in that part of Australia at that time, have constituted an offence (in this section called the "local offence found to have been proved") of a kind different from the kind of offence referred to in paragraph (b); and (d) by virtue of the law in force in that part of Australia at the relevant time or at the time of the trial, a person charged with an offence of the kind referred to in paragraph (b) could in certain circumstances be found not guilty of the last-mentioned offence but guilty of an offence of the kind referred to in subparagraph (c) (ii); the jury may find the person not guilty of the offence charged but guilty of the alternative offence. (2) If the jury finds the person guilty of an offence under this Act in the circumstances referred to in subsection (1), it shall, when returning its verdict, tell the judge that it is satisfied as mentioned in subparagraph (1) (c) (ii) and specify to the judge the kind of local offence found to have been proved. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 11 No defence of exceptional circumstances or superior orders
11. It is not a defence in a proceeding for an offence against this Act that: (a) the act 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
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(b) in doing the act 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. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 12 Section 38 of Judiciary Act
12. A matter arising under this Act, including a question of interpretation of the Convention for the purposes of this Act, shall, for the purposes of section 38 of the Judiciary Act 1903, be deemed not to be a matter arising directly under a treaty. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SECT 13 Assistance under article 6 of Convention
13. A person, other than an Australian citizen, who is in custody in respect of an offence that is alleged to have been committed against this Act is entitled to the assistance referred to in paragraph 3 of Article 6 of the Convention. CRIMES (TORTURE) ACT 1988 No. 148 of 1988 - SCHEDULE
SCHEDULE Section 3 CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT The States Parties to this Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that those rights derive from the inherent dignity of the human person, Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms, Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975, Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world, Have agreed as follows: PART I Article 1 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiesence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
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Article 3 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. Article 6 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. 3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides. 4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction. Article 7 1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all
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stages of the proceedings. Article 8 1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. Article 9 1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings. 2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them. Article 10 1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. 2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons. Article 11 Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. Article 12 Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Article 13 Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. Article 14 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law. Article 15