Criminal Code Act 1995
Schedule
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The Criminal Code
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.
Section 3
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 K - Miscellaneous SECTION 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) .
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