CRIMES (HOSTAGES) ACT 1989 No. 26, 1989
CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - TABLE OF PROVISIONS
TABLE OF PROVISIONSSection 1. Short title 2. Commencement 3. Interpretation 4. Act extends to external Territories 5. Application 6. Effect of this Act on other laws 7. Meaning of hostage-taking 8. When hostage-taking an offence 9. Person not to be charged in certain circumstances 10. Prosecutions 11. Venue where offence committed on aircraft 12. Change of venue 13. Evidence of certain matters 14. Section 38 of Judiciary Act 15. Assistance under article 6 of Convention SCHEDULE INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - LONG TITLE
An Act to give effect to the International Convention Against the Taking of Hostages, and for related purposes CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 1 Short title
(Assented to 15 May 1989) 1. This Act may be cited as the Crimes (Hostages) Act 1989. (Minister's second reading speech made in- House of Representatives on 1 December 1988 Senate on 9 March 1989) CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 2 Commencement
2. This Act commences on a day to be fixed by Proclamation. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 3 Interpretation
3. (1) In this Act, unless the contrary intention appears: "Australia" includes: (a) the external Territories; and (b) the Australian coastal sea; "Australian aircraft" means: (a) an aircraft registered in accordance with the Civil Aviation Regulations as an Australian aircraft; (b) an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth (including Qantas Airways Limited); or (c) an aircraft of any part of the Defence Force (including an aircraft that is being commanded or piloted by a member of that Force in the course of the member's duties as such a member); "Australian coastal sea" means: (a) the territorial sea of Australia; and (b) the sea on the landward side of the territorial sea of Australia; "Australian ship" means: (a) a ship registered in Australia; (b) an unregistered ship that has Australian nationality; or (c) a ship that belongs to an arm of the Defence Force; "Convention" means the International Convention Against the Taking of Hostages that was opened for signature at New York on 18 December 1979, a copy of the English text of which is set out in the Schedule; "offence against this Act" means: (a) an offence against subsection 8 (1); or (b) an offence against: (i) section 7 of the Crimes Act 1914; or (ii) subsection 86 (1) of that Act by virtue of paragraph (a) of that subsection; being an offence that relates to an offence referred to in paragraph (a) of this definition; "part of Australia" means a State or Territory. (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.
(3) For the purposes of sections 6 and 7A of the Crimes Act 1914, an offence against subsection 8 (1) of this Act shall be taken not to be an offence against a law of the Commonwealth. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 4 Act extends to external Territories
4. This Act extends to all external Territories.
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CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 5 Application
5. This Act extends, except so far as the contrary intention appears: (a) to acts, matters and things outside Australia, whether or not in or over a foreign country; and (b) to all persons, irrespective of their nationality or citizenship. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 6 Effect of this Act on other laws
6. (1) 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 a person has been convicted 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 (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 7 Meaning of hostage-taking
7. For the purposes of this Act, a person commits an act of hostage-taking if the person: (a) seizes or detains another person (in this section called "the hostage"); and (b) threatens to kill, to injure, or to continue to detain, the hostage; in order to compel: (c) a legislative, executive or judicial institution in Australia or in a foreign country; (d) an international intergovernmental organisation; or (e) any other person (whether an individual or a body corporate) or group of persons; to do, or abstain from doing, any act as an explicit or implicit condition for the release of the hostage. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 8 When hostage-taking an offence
8. (1) A person who, at any time after the Convention enters into force for Australia, commits an act of hostage-taking is guilty of an offence against this subsection. (2) The punishment for an offence against subsection (1) is imprisonment for life or for any lesser term.
(3) Subject to section 9, a person shall not be charged with an offence against this Act unless: (a) the act alleged to constitute the offence was committed: (i) in Australia; or (ii) on an Australian ship or an Australian aircraft, whether in or outside Australia; or (b) where the act alleged to constitute the offence was committed outside Australia (otherwise than on an Australian ship or an Australian aircraft): (i) the person was, at the time the act was committed, an Australian citizen; (ii) the person is present in Australia; or (iii) the act was committed in order to compel a legislative, executive or judicial institution in Australia to do, or abstain from doing, any act. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 9 Person not to be charged in certain circumstances
9. (1) A person shall not be charged in relation to an act alleged to constitute an offence against this Act if, under article 12 of the Convention, the Convention would not apply in relation to that act. (2) Subject to subsection (3), a person shall not be charged with an offence against this Act if: (a) the act alleged to constitute the offence was committed in a particular State; (b) the person was, at the time the act was committed, a citizen of that State; (c) the person is in that State; and (d) the person seized or detained as a hostage was, at the time of that seizure or detention, a citizen of that State. (3) Subsection (2) does not apply where the person referred to in paragraph (2) (c) is in the State where the act alleged to constitute the offence was committed by reason of being extradited to that State in relation to that act.
(4) In this section, "State" means: (a) Australia; or (b) a foreign country. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 10 Prosecutions
10. (1) Proceedings for the commitment of a person for trial on indictment for an offence against this Act shall not be instituted 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 charged with an offence against this Act; (b) a person may be arrested for such an offence, and a warrant for such an arrest may be issued and executed; 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
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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 (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 11 Venue where offence committed on aircraft
11. Where, in the trial on indictment in a court of a State or Territory of an offence against this Act committed on an aircraft in flight, an act constituting in whole or in part the offence charged is proved, it shall be presumed, unless the evidence shows the contrary, that that act did not take place in another part of Australia, being a State. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 12 Change of venue
12. (1) Where, at any time after the presentation in a court of a State or Territory of an indictment for an offence against this Act committed on an aircraft in flight and before the jury has returned its verdict: (a) the defendant objects to the trial on the ground that the offence, if committed, was committed in another part of Australia, being a State; and (b) the court is satisfied that the offence, if committed, was committed in that other part of Australia; the court shall forthwith order that the proceedings on the indictment be discontinued and, if the jury has been empanelled, that the jury be discharged, and that the defendant appear before that court or another court of the first-mentioned State or Territory at a specified time, not later than 28 days after the day on which the order is made, to be dealt with in accordance with this section. (2) Where a court makes an order under subsection (1), the court may also: (a) order that the defendant be kept in such custody as is specified in the order; or (b) admit the defendant to bail, on such recognizances as the court thinks fit. (3) If, before the time at which the defendant is to appear before a court pursuant to an order under subsection (1), the Attorney-General or the Director of Public Prosecutions notifies that court that he or she does not intend to file an indictment against the defendant in a court of another part of Australia, the first-mentioned court shall, as soon as practicable after being so notified, make an order: (a) discharging the defendant from the obligation to appear before that court at that time; and (b) directing: (i) if the defendant is held in custody-that he or she be released; or (ii) if he or she has been admitted to bail-that the recognizances upon which he or she was admitted to bail be discharged. (4) If, at or before the time at which the defendant is to appear before a court pursuant to an order under subsection (1), the Attorney-General or the Director of Public Prosecutions notifies that court that he or she has filed an indictment against the defendant in a court of another part of Australia, the first-mentioned court shall: (a) if the defendant is in custody-forthwith; or (b) in any other case-as soon as practicable after the time at which the defendant is to appear before that court; make an order directing that the defendant be taken, as soon as practicable, in the custody of such person as it directs, to the part of Australia in which the indictment was filed and there be delivered to the custody of a person having authority to arrest the defendant, and may make such further orders as it thinks necessary for facilitating the carrying into effect of the first-mentioned order. (5) If: (a) at the time at which the defendant is to appear before a court pursuant to an order under subsection (1), neither the Attorney-General nor the Director of Public Prosecutions has notified that court that he or she does not intend to file an indictment against the defendant in a court in another part of Australia; (b) neither the Attorney-General nor the Director of Public Prosecutions notifies the first-mentioned court before or at that time that he or she has filed such an indictment; and (c) the defendant is in custody; the first-mentioned court shall, at that time, make an order directing that the defendant be released. (6) Where an order has been made under subsection (1) in relation to an indictment, the proceedings on that indictment do not, and that order does not, prevent or prejudice any other indictment, or any information, against the defendant, whether on the same charge or on any other charge.
(7) The jurisdiction of a court under subsection (3), (4) or (5) may be exercised by the court constituted by a single judge or Magistrate. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 13 Evidence of certain matters
13. A certificate by the Attorney-General stating that: (a) the Convention entered into force for Australia on a specified date; and (b) as at the date of the certificate, the Convention remains in force for
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Australia; is, for the purposes of any proceedings under this Act, prima facie evidence of the facts stated in the certificate. CRIMES (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 14 Section 38 of Judiciary Act
14. 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 (HOSTAGES) ACT 1989 No. 26 of 1989 - SECT 15 Assistance under article 6 of Convention
15. 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 (HOSTAGES) ACT 1989 No. 26 of 1989 - SCHEDULE
SCHEDULE Section 3 INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES The States Parties to this Convention, Having in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of friendly relations and co-operation among States, Recognizing in particular that everyone has the right to life, liberty and security of person, as set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Reaffirming the principle of equal rights and self-determination of peoples as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, as well as in other relevant resolutions of the General Assembly, Considering that the taking of hostages is an offence of grave concern to the international community and that, in accordance with the provisions of this Convention, any person committing an act of hostage taking shall either be prosecuted or extradited, Being convinced that it is urgently necessary to develop international co-operation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism, Have agreed as follows: Article 1 1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ("hostage-taking") within the meaning of this Convention.2. Any person who: (a) attempts to commit an act of hostage-taking, or (b) participates as an accomplice of anyone who commits or attempts to commit an act of hostage-taking, likewise commits an offence for the purposes of this Convention. Article 2 Each State Party shall make the offences set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offences. Article 3 1. The State Party in the territory of which the hostage is held by the offender shall take all measures it considers appropriate to ease the situation of the hostage, in particular, to secure his release and, after his release, to facilitate, when relevant, his departure.2. If any object which the offender has obtained as a result of the taking of hostages comes into the custody of a State Party, that State Party shall return it as soon as possible to the hostage or the third party referred to in article 1, as the case may be, or to the appropriate authorities thereof. Article 4 States Parties shall co-operate in the prevention of the offences set forth
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in article 1, particularly by: (a) taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages; (b) exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offences. Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who 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 the offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him 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 that the circumstances so warrant, any State Party in the territory of which the alleged offender is present shall, in accordance with its laws, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted. That State Party shall immediately make a preliminary inquiry into the facts.2. The custody or other measures referred to in paragraph 1 of this article shall be notified without delay directly or through the Secretary-General of the United Nations to: (a) the State where the offence was committed; (b) the State against which compulsion has been directed or attempted; (c) the State of which the natural or juridical person against whom compulsion has been directed or attempted is a national; (d) the State of which the hostage is a national or in the territory of which he has his habitual residence; (e) the State of which the alleged offender is a national or, if he is a stateless person, in the territory of which he has his habitual residence; (f) the international intergovernmental organization against which compulsion has been directed or attempted; (g) all other States concerned.3. Any person regarding whom the measures referred to in paragraph 1 of this article are being taken shall be entitled: (a) to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence; (b) to be visited by a representative of that State.4. The rights referred to in paragraph 3 of this article shall be exercised in conformity with the laws and regulations of the State in the territory of which the alleged offender is present subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 of this article are intended.