Part IIILegal proceedings in respect of protected persons

An Act to enable effect to be given to certain Conventions done at Geneva on 12 August 1949 and to a Protocol additional to those Conventions done at Geneva on 10 June 1977, and for related purposes ## Part I—Preliminary #### 1 Short title This Act may be cited as the Geneva Conventions Act 1957. #### 2 Commencement This Act shall come into operation on a date to be fixed by Proclamation, not being earlier than 6 months after the deposit on behalf of Australia of instruments of ratification of the Conventions referred to in this Act. #### 5 Interpretation (1) In this Act: > the First Convention means the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted at Geneva on 12 August 1949, a copy of which Convention (not including the annexes to that Convention) is set out in Schedule 1. > the Second Convention means the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted at Geneva on 12 August 1949, a copy of which Convention (not including the annex to that Convention) is set out in Schedule 2. > the Third Convention means the Geneva Convention relative to the Treatment of Prisoners of War, adopted at Geneva on 12 August 1949, a copy of which Convention (not including the annexes to that Convention) is set out in Schedule 3. > the Fourth Convention means the Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted at Geneva on 12 August 1949, a copy of which Convention (not including the annexes to that Convention) is set out in Schedule 4. > the Conventions means the First Convention, the Second Convention, the Third Convention and the Fourth Convention. (1A) In this Act: > Protocol I means the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), done at Geneva on 10 June 1977, a copy of the English text of which is set out in Schedule 5. > Protocol III means the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), done at Geneva on 8 December 2005, a copy of the English text of which is set out in Schedule 6. (2) In this Act, unless the contrary intention appears: > Australia includes the Territories. > court does not include: (a) a service tribunal within the meaning of the Defence Force Discipline Act 1982; or (b) a military court. > protected internee means a person protected by the Fourth Convention and interned in Australia. > protected prisoner of war means a person protected by the Third Convention or a person who is a prisoner of war for the purposes of Protocol I. > the protecting power, in relation to a protected prisoner of war or a protected internee, means the power or organization which is carrying out, in the interests of the power of which he or she is a national, or of whose forces he or she is, or was at any material time, a member, the duties assigned to protecting powers under the Third Convention, the Fourth Convention or Protocol I, as the case may be. (3) If the ratification on behalf of Australia of any of the Conventions or of Protocol I or Protocol III is subject to a reservation or is accompanied by a declaration, that Convention or that Protocol shall, for the purposes of this Act, have effect and be construed subject to and in accordance with that reservation or declaration. #### 6 Application of Act (1) This Act extends to every Territory. (2) This Act has extra‑territorial operation according to its tenor. #### 6A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part III—Legal proceedings in respect of protected persons #### 10A Court may determine whether person is a protected prisoner of war (1) A person referred to in paragraph 1 or 2 of Article 45 of Protocol I may apply to the Supreme Court of the State or Territory in which the person is held in custody for a declaration that he or she has the status of a protected prisoner of war. (2) The jurisdiction of a Court for the purposes of this section is constituted by a single Judge. (3) Subject to subsection (4), the jurisdiction of the Court is to be exercised in open court. (4) The Court may order the exclusion of the public or persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or those persons, as the case may be, would be contrary to the interests of justice or would not be in the public interest. #### 11 Notice of trial of protected prisoners of war and internees to be served on protecting power etc. (1) The court before which: (a) a protected prisoner of war is brought up for trial for an offence; or (b) a protected internee is brought up for trial for an offence for which that court has power to sentence him or her to imprisonment for a term of 2 years or more; shall not proceed with the trial until it is proved to the satisfaction of the court that a notice containing the particulars mentioned in subsection (2), so far as they are known to the prosecutor, has been served not less than 3 weeks previously on the protecting power (if there is a protecting power) and, if the accused is a protected prisoner of war, on the accused and the prisoners’ representative. (2) The particulars referred to in subsection (1) are: (a) the full name, date of birth and description of the accused, including his or her profession or trade; (ab) where the accused is a protected prisoner of war—the accused’s rank and his or her army, regimental, personal and serial number; (b) the accused’s place of detention, internment or residence; (c) the offence with which the accused is charged; and (d) the court before which the trial is to take place and the time and place appointed for the trial. (3) For the purposes of this section, a document purporting: (a) to be signed on behalf of the protecting power or by the prisoners’ representative or by the person accused, as the case may be; and (b) to be an acknowledgment of the receipt by that power, representative or person on a specified day of a notice described in the document as a notice under this section; shall, unless the contrary is shown, be sufficient evidence that the notice required by subsection (1) was served on that power, representative or person on that day. (4) In this section, the expression prisoners’ representative, in relation to a particular protected prisoner of war at a particular time, means the person by whom the functions of prisoners’ representative within the meaning of Article 79 of the Third Convention were exercisable in relation to that prisoner at the camp or place at which that prisoner was, at or last before that time, detained as a protected prisoner of war. (5) A court which adjourns a trial for the purpose of enabling the requirements of this section to be complied with may, notwithstanding anything in any other law, remand the accused for the period of the adjournment. #### 12 Legal representation of prisoners of war (1) The court before which a protected prisoner of war is brought up for trial for an offence shall not proceed with the trial unless: (a) the accused is represented by counsel; and (b) it is proved to the satisfaction of the court that a period of not less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to the solicitor by whom that counsel was instructed; and if the court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, then, notwithstanding anything in any other law, the court may remand the accused for the period of the adjournment. (2) In the absence of counsel accepted by the accused as representing him or her, counsel instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of paragraph (1)(b), be regarded for the purposes of that subsection as representing the accused. (3) If the court adjourns the trial in pursuance of subsection (1) by reason that the accused is not represented by counsel, the court shall direct that a solicitor and counsel be assigned to watch over the interests of the accused at any further proceedings in connection with the offence, and at any such further proceedings, in the absence of counsel either accepted by the accused as representing him or her or instructed as mentioned in subsection (2), counsel assigned in pursuance of this subsection shall, without prejudice to the requirements of paragraph (1)(b), be regarded for the purposes of subsection (1) as representing the accused. (4) In relation to any proceedings before a court before which the accused may be represented by a solicitor, subsections (1), (2) and (3) shall be construed, with any necessary modifications, as if references in those provisions to counsel were references to counsel or a solicitor; and for the purposes of any such proceedings the court, in giving a direction under subsection (3), may, if the court is satisfied that the nature of the charge and the interests of justice do not require that the interests of the accused should be watched over by counsel, direct that a solicitor only shall be assigned as mentioned in that subsection. (5) A solicitor or counsel shall be assigned in pursuance of subsection (3) in such manner as is provided by the regulations or, in the absence of provision in the regulations, as the court directs, and the fees and costs of any solicitor or counsel so assigned shall be paid by the Commonwealth. #### 13 Appeals by protected prisoners of war and internees (1) Where a protected prisoner of war or a protected internee has been sentenced by a court to imprisonment for a term of 2 years or more, any time allowed in relation to the institution of an appeal against the conviction or sentence shall be deemed to continue to run until the day on which the convicted person receives a notice given: (a) in the case of a protected prisoner of war—by an officer in the Defence Force; or (b) in the case of a protected internee—by or on behalf of the governor or other person in charge of the prison or place in which he or she is confined; that the protecting power has been notified of his or her conviction and sentence, and for such further time as would have been within the time allowed if the conviction or sentence had taken place or been pronounced on that day. (2) Where, after an appeal against the conviction or sentence by a court of a protected prisoner of war or a protected internee has been determined, the sentence remains or has become a sentence of imprisonment for a term of 2 years or more, any time allowed in relation to a further appeal in respect of the conviction or sentence as confirmed or varied upon the previous appeal shall be deemed to continue to run until the day on which the convicted person receives a notice given by a person referred to in paragraph (1)(a) or (b), as the case may require, that the protecting power has been notified of the decision of the court upon the previous appeal, and for such further time as would have been within the time allowed if that decision had been pronounced on that day. (3) Where subsection (1) applies in relation to a convicted person, then, unless the court otherwise orders, an order of the court relating to the restitution of property or the payment of compensation to an aggrieved person shall not take effect, and a provision of a law relating to the revesting of property on conviction shall not take effect in relation to the conviction, while an appeal by the convicted person against his or her conviction or sentence is possible without an extension of time other than the extension provided by subsection (2). (5) Subsections (1), (2) and (3) do not apply in relation to an appeal against a conviction or sentence, or against the decision of a court upon a previous appeal, if, at the time of the conviction or sentence, or of the decision of the court upon the previous appeal, as the case may be, there is no protecting power. #### 14 Reduction of sentence and custody of protected prisoners of war and internees (1) When a protected prisoner of war or a protected internee is convicted of an offence, the court shall: (a) in fixing a term of imprisonment in respect of the offence, deduct from the term which it would otherwise have fixed any period during which the convicted person has been in custody in connection with that offence before the trial; and (b) in fixing any penalty other than imprisonment in respect of the offence, take that period of custody into account. (2) Where the Attorney‑General is satisfied that a protected prisoner of war accused of an offence has been in custody in connection with that offence, while awaiting trial, in a place other than a camp or place in which protected prisoners of war are detained, for an aggregate period of not less than 3 months, the Attorney‑General may direct that the prisoner shall be transferred from that custody to the custody of an officer of the Defence Force and thereafter remain in military custody at a camp or place in which protected prisoners of war are detained, and be brought before the court at the time appointed for his or her trial. ## Part IV—Abuse of the Red Cross and other emblems, signs, signals, identity cards, insignia and uniforms #### 15 Use of Red Cross and other emblems, signs, signals, identity cards, insignia and uniforms (1) Subject to this section, a person shall not, without the consent in writing of the Minister or of a person authorized in writing by the Minister to give consents under this section, use for any purpose whatsoever any of the following: (a) the emblem of a red cross with vertical and horizontal arms of the same length on, and completely surrounded by, a white ground, or the designation “Red Cross” or “Geneva Cross”; (b) the emblem of a red crescent moon on, and completely surrounded by, a white ground, or the designation “Red Crescent”; (c) the following emblem in red on, and completely surrounded by, a white ground, that is to say, a lion passing from right to left of, and with its face turned towards, the observer, holding erect in its raised right forepaw a scimitar, with, appearing above the lion’s back, the upper half of the sun shooting forth rays, or the designation “Red Lion and Sun”; (ca) the emblem of a red frame in the shape of a square on edge on a white ground, or the designation “Red Crystal”; (d) the emblem of a white or silver cross with vertical and horizontal arms of the same length on, and completely surrounded by, a red ground, being the heraldic emblem of the Swiss Confederation; (e) a design or wording so nearly resembling any of the emblems or designations specified in paragraph (a), (b), (c), (ca) or (d) as to be capable of being mistaken for, or, as the case may be, understood as referring to, one of those emblems; (f) such other emblems, identity cards, signs, signals, insignia or uniforms as are prescribed for the purpose of giving effect to Protocol I or Protocol III. Penalty: 10 penalty units. (1A) Subsection (1) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (2) The Minister or a person authorized by the Minister to give consents under this section shall not refuse to give such a consent, and shall not withdraw such a consent, except for the purpose of giving effect to the provisions of the Conventions or of Protocol I. (3) An authority given under section 4 of the Geneva Convention Act 1938 and in force immediately before the commencement of this section shall be deemed to be a consent to the like effect given by the Minister under this section. (4) Where a court convicts a person of an offence against subsection (1), the court may order the forfeiture to the Commonwealth of: (a) any goods upon or in connection with which an emblem, designation, design, wording or sign was used by that person; and (b) any identity cards, insignia or uniforms used in the commission of the offence. (5) In the case of a trade mark registered before the day to which subsection (5A) applies, subsections (1), (2), (3) and (4) do not apply by reason only of its consisting of or containing an emblem or designation specified in paragraph (1)(b), (c) or (ca) or a design or wording resembling such an emblem or designation; and where a person is charged with using such an emblem, designation, design or wording for any purpose and it is proved that the person used it otherwise than as, or as part of, a trade mark so registered, it is a defence for the person to prove: (a) that the person lawfully used that emblem, designation, design or wording for that purpose before the day to which subsection (5A) applies; or (b) in a case where the person is charged with using the emblem, designation, design or wording upon goods, that the emblem, designation, design or wording had been applied to the goods before the person acquired them by some other person who had manufactured or dealt with the goods in the course of trade and who lawfully used the emblem, designation, design or wording upon similar goods before the day to which subsection (5A) applies. (5A) For the purposes of subsection (5), this subsection applies to the following day: (a) to the extent that subsection (5) applies in relation to a trade mark consisting of or containing an emblem or designation specified in paragraph (1)(b) or (c) or a design or wording resembling such an emblem or designation—the day on which this Act received the Royal Assent; (b) to the extent that subsection (5) applies in relation to a trade mark consisting of or containing an emblem or designation specified in paragraph (1)(ca) or a design or wording resembling such an emblem or designation—the day on which Schedule 1 to the Defence Legislation (Miscellaneous Amendments) Act 2009 commenced. (6) Where an offence against this section committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other officer of the body corporate, or a person purporting to act in any such capacity, he or she, as well as the body corporate, is taken to have committed the offence and shall be liable to be proceeded against and punished accordingly. (7) This section extends to the use in or outside Australia of an emblem, designation, design, wording, sign, signal, identity card, insignia or uniform referred to in subsection (1) on any ship or aircraft registered in Australia. (8) Proceedings under this section shall not be instituted without the consent in writing of the Attorney‑General. ## Part V—Regulations #### 16 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.