Criminal Code Act 1995

A person (the perpetrator) commits an offence if:

the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Subsection (1) does not apply if:

the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

at the time the attack was launched:

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:

a person or persons who are hors de combat; or

civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.

For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.