War Crimes Act 1945

The Act affects two primary classes of natural persons. The first class comprises those who, between 1 September 1939 and 8 May 1945, committed acts that satisfy the layered definitions in ss.6 and 7. Because s.5 defines “person” to mean a natural person whether or not the person has ever been an Australian citizen, a resident of Australia, a British subject or a citizen of an allied country, the Act reaches any individual regardless of nationality at the time of the conduct. The second, and decisive, class comprises those who are today Australian citizens or residents (s.11). Only members of this second class may be charged.

The Act therefore captures former members of Axis forces, collaborationist organisations, or civilian officials who later migrated to Australia and acquired citizenship or residency. It also reaches Australian citizens who served in Allied forces or resistance movements if their conduct meets the serious-crime and war-crime thresholds, although the policy focus of the legislation has historically been on the former group. Because s.9(1) expressly includes acts committed “as a member of an organisation”, command-level or bureaucratic involvement can suffice.

The legislation does not create duties on corporations or other entities; “person” is limited to natural persons. It does, however, impose obligations on Commonwealth officers. The Attorney-General must consider applications for legal or financial assistance (s.19), must cause annual reports to be prepared and tabled whenever an investigation or proceeding has occurred in a financial year (s.21), and must decide whether to consent to the laying of refusal notices before Parliament. The Director of Public Prosecutions is the only other person authorised to prosecute (s.12). Courts exercising jurisdiction under the Act are required to apply the choice-of-law rules in s.13, to entertain venue-transfer applications under s.14, to consider stay applications under s.13(5), and to administer the alternative-verdict regime in s.18.

Investigative agencies that receive referrals of suspected offences are indirectly affected because s.21 requires the Attorney-General to report on the number of suspected offences under investigation, resources applied, and anticipated timetables for completion. Defence practitioners appearing for accused persons must master the unusual evidentiary and onus rules in ss.13(3), 17(4)–(5) and 13(5). Historians, archivists and potential witnesses are not directly regulated but may be affected by the practical operation of the Act through requests for evidence that, if lost, can ground a stay application.

Because the temporal window is closed and the class of potential defendants is limited to those now resident in Australia, the pool of living persons affected is small and continues to shrink. The Act’s ongoing relevance therefore lies primarily in its symbolic, deterrent and historical-accountability functions rather than in any large-scale regulatory impact on the Australian population at large.

The Act creates few ongoing “duties” in the regulatory sense; it is a criminal statute addressed to past conduct. The principal duty it imposes is the negative obligation not to have committed a war crime in the defined period. Once that historical fact is established in accordance with the Act’s procedures, the duty to submit to punishment arises.

For contemporary actors the Act creates duties on the Attorney-General. Under s.19(2) the Attorney-General must decide whether it is “appropriate and reasonable” to grant legal or financial assistance, having regard to hardship that refusal would cause (s.19(4)). A refusal triggers a duty to give written reasons and to invite the applicant to consent to parliamentary tabling of the notice (s.19(5)–(6)). Section 21 imposes a mandatory duty to cause an annual report to be prepared and laid before each House whenever any investigation or proceeding has occurred in the financial year. The report must address the number of suspected offences investigated, the number of proceedings on foot, resources applied, and anticipated completion timetables.

Rights created by the Act are predominantly procedural and defensive. An accused person has the right to invoke the defence in s.17 where the act was permitted by the laws, customs and usages of war and was not under international law a crime against humanity. The structure of that defence is important: the defendant need only adduce some evidence of the facts (s.17(4)), after which the prosecution bears the legal onus of disproving the defence beyond reasonable doubt (s.17(5)). The Act expressly preserves the ordinary rules of evidence and procedure and the court’s power to prevent abuse of process (s.13(4)). A specific statutory right to apply for a permanent stay arises under s.13(5) where the accused can show on the balance of probabilities that evidence has become unavailable through lapse of time or other uncontrollable cause, that substantial prejudice has resulted or will result, and that the interests of justice require a stay.

Section 14 confers a right to apply for a change of venue to another State or internal Territory. If the defendant was not resident in the forum State or Territory at the time of charge, the magistrate or judge must order the transfer unless satisfied on the balance of probabilities that the defendant was a resident of the forum or was not a resident of the proposed new venue. The defendant also enjoys the protection of s.11: no person who is neither an Australian citizen nor a resident of Australia or an external Territory may be charged.

An accused person further has the right to have any defence that could have been raised under the law in force at the time of the act taken into account (ss.6(2), 13(2)(f)). Superior orders, while not a defence (s.16), must be taken into account in sentencing if the person is convicted. The right to legal or financial assistance under s.19 is discretionary but must be considered on the merits, with hardship a mandatory relevant consideration.

For the prosecution, the Act confers the right to rely on absolute liability for the elements that characterise conduct as a serious crime (s.9(3)), thereby removing any mens rea or mistake-of-law defence on that issue. The Attorney-General and Director of Public Prosecutions enjoy the exclusive right to prosecute (s.12).

Penalties are graduated by outcome. Where the offence involves the wilful killing of a person, the maximum is imprisonment for life or any lesser term (s.10(1)). For any other offence the maximum is 25 years’ imprisonment (s.10(2)). No fines are prescribed; the Act relies exclusively on custodial sentences. Because the offence is indictable, trial on indictment before a jury is required.

Enforcement is centralised. Only the Attorney-General or the Director of Public Prosecutions may prosecute (s.12). Proceedings are commenced either by committal or by direct indictment. The ordinary machinery of the Judiciary Act 1903 applies subject to the modifications in s.13(1). Jurisdiction is therefore exercised by State and internal-Territory courts, but the Act deems the law of the forum State or Territory to govern characterisation and defences (s.13(2)).

Investigations are not expressly regulated by the Act but feed into the mandatory reporting obligation in s.21. Once a proceeding is on foot, enforcement powers include the normal coercive powers of investigating agencies and courts, supplemented by the specific procedural provisions. A magistrate or judge may order a defendant to be transferred in custody to another State or Territory following a successful venue application (s.15(2)) and may make ancillary orders to give effect to that transfer.

Enforcement is also affected by the absolute-liability rule in s.9(3). The prosecution need not prove that the accused knew or believed that the act constituted one of the offences listed in s.6(1); that characterisation is a circumstance of strict liability. Conversely, the prosecution must negative the s.17 defence beyond reasonable doubt once the defendant points to some evidence.

The Act contains no administrative penalties, infringement notices or civil enforcement mechanisms. It is purely criminal. The only non-custodial consequence expressly contemplated is the discretionary grant or refusal of legal assistance under s.19, which is framed as a form of Commonwealth financial support rather than a penalty.

Because the conduct in question occurred more than seventy years ago, enforcement necessarily depends on historical evidence, survivor testimony, archival documents and, in some cases, admissions. The stay power in s.13(5) therefore operates as an important limit on enforcement where the passage of time has rendered a fair trial impossible.

The Act is expressly linked to several other Commonwealth statutes and to the common law and statute law of the Australian States and Territories as they stood at the time of the alleged conduct.

Section 3A applies Chapter 2 of the Criminal Code to all offences against the Act, with the explicit exception of ss.11.1, 11.2, 11.2A and 11.5 (s.9(2)). The general principles of criminal responsibility therefore govern fault elements, defences of mistake, intoxication, duress and the like, but the specific extensions of criminal liability for attempt and complicity are excluded. Absolute liability is imposed on the characterisation elements by s.9(3), displacing the default position in s.6.2 of the Criminal Code.

Section 13(1) applies s.68 of the Judiciary Act 1903 (which confers federal criminal jurisdiction on State courts) but excludes external Territories from the definition of “Territory”. The choice-of-law rules in s.13(2) then deem the law of the forum State or internal Territory to apply both to the characterisation of the act as a serious crime and to the availability of defences, including defences that have arisen since the date of the conduct. This creates a dynamic interaction between the static historical law required by s.6(1) and the current procedural law of the forum.

The Act sits alongside the Geneva Conventions Act 1957 and the Criminal Code Division 268 (genocide, crimes against humanity and war crimes). However, the War Crimes Act is temporally limited to the 1939–1945 European conflict and uses its own definitional structure rather than the modern international-crimes taxonomy. Section 17(2)(b) expressly refers to “crime against humanity” under international law, thereby importing a concept that has since been codified in the Criminal Code but which, for the purposes of this Act, remains a free-standing limit on the s.17 defence.

At State and Territory level the Act interacts with the statute and common law in force at the time of the alleged act (for characterisation) and at the time of trial (for procedural matters and current defences). Section 6(2) and s.13(2)(f) require regard to any defence that could have been established at the time of the act. Section 18 creates a statutory alternative-verdict regime that mirrors but does not replicate the ordinary rules for alternative verdicts under State law; it operates only where the historical law would have permitted conviction of a lesser offence listed in s.6(1).

The Act also interacts with parliamentary law. Section 19(6) and s.21(3) require documents to be laid before each House within 15 sitting days, engaging the ordinary tabling and disallowance procedures. The provision in s.20 that certain subsections “are enacted to avoid doubt” signals an intention to displace any contrary implication that might otherwise be drawn from the general law or from earlier versions of the statute.

Finally, the Act preserves the court’s inherent power to prevent abuse of process (s.13(4)(b)) and therefore sits within the broader constitutional and common-law framework governing fair trials. It does not displace the rules of evidence except to the limited extent that absolute liability and shifted onus provisions modify them.

Although the source text is a consolidation, several provisions appear to have been inserted to address operational difficulties encountered in the Act’s later use. Section 3A, applying Chapter 2 of the Criminal Code, was added to bring the Act into line with the general principles of criminal responsibility that now govern all Commonwealth offences. The note to s.3A expressly records that Chapter 2 “sets out the general principles of criminal responsibility”, indicating a legislative desire for doctrinal consistency.

Section 20 declares that s.6(6) (disregard of local law that authorised the act) and s.16 (no defence of superior orders) “are enacted to avoid doubt”. This formula is typically used when Parliament wishes to put beyond argument an interpretation that had been contested or that might have been inferred from the pre-existing text. Its inclusion suggests that earlier litigation or academic debate had raised questions about whether local authorisation or superior orders could negate liability; the new subsections were inserted to foreclose that argument.

The most visible recent addition is the annual reporting regime in s.21. It requires a report whenever an investigation of a suspected offence or a proceeding for an alleged offence has been started or carried on in the financial year. The report must address the number of investigations, the number of proceedings, resources applied, and anticipated timetables. The obligation to table the report within 15 sitting days mirrors the parliamentary-accountability mechanism in s.19(6). The evident purpose is to ensure continuing parliamentary and public scrutiny of a statute that is rarely invoked but that carries significant moral and diplomatic weight. By requiring information about resources and timetables, Parliament has sought to guard against both under-resourcing and open-ended investigations that might themselves cause unfairness to potential defendants.

These changes collectively reflect a legislative judgment that an Act dealing with events now three generations in the past requires both doctrinal modernisation (Criminal Code alignment) and enhanced transparency and accountability mechanisms to maintain public confidence in its administration.

The Act itself contains several provisions that anticipate and attempt to manage controversy. The stay power in s.13(5) directly addresses the fairness problems created by the passage of more than seventy years. An accused person may satisfy the judge on the balance of probabilities that evidence that would otherwise have been available has been lost through lapse of time or other uncontrollable reason, that substantial prejudice has resulted or will result to the preparation or conduct of the defence, and that the interests of justice require a stay. The judge is then empowered to make any order thought appropriate. This provision has the capacity to generate interlocutory litigation focused on the precise degree of prejudice and the content of the “interests of justice” test. Because the subsection is expressed in broad terms and the judge’s decision is discretionary, appellate review is likely to be confined to House v The King error.

Section 14’s venue-transfer mechanism has also been crafted with potential controversy in mind. A defendant may apply for transfer to another State or internal Territory. The magistrate or judge must order the transfer unless satisfied on the balance of probabilities that the defendant was a resident of the charging State or Territory or was not a resident of the proposed new venue. The provision therefore creates a presumptive right to be tried in a venue linked to the defendant’s residence at the time of charge. Disputes about residence, timing of the application (“as soon as reasonably practicable”), and the appealability of transfer orders (s.14(5)) are likely to generate preliminary contested hearings.

The interaction between historical law and current law has produced, and will continue to produce, complexity in jury directions. Section 18’s alternative-verdict regime is particularly intricate. It requires the jury to be satisfied that the alternative offence is an act that would have been an offence of a kind referred to in a paragraph of s.6(1) under the law in force at the time of the act or at the time of trial. The jury must then specify to the judge the kind of offence referred to. Any misdirection on these historical characterisations is likely to found an appeal.

Section 17’s war-law defence raises difficult questions of foreign and international law. The defendant must adduce “evidence of the existence of the facts constituting the defence”; once that evidentiary threshold is met the prosecution must negative the defence beyond reasonable doubt. Expert evidence on the content of the “laws, customs and usages of war” and on whether the act was “under international law a crime against humanity” will almost inevitably be required. Differences of opinion among experts can generate lengthy voir-dire hearings and appeals on admissibility.

The exclusion of certain Criminal Code complicity provisions (s.9(2)) while retaining the accessorial language in s.6(1)(k) creates a further field for argument about the precise mental elements required for liability as an aider, abettor or person knowingly concerned. The absolute-liability rule in s.9(3) removes mistake of law as a defence to the characterisation question but leaves open mistake of fact on the underlying physical acts.

Finally, the annual reporting obligation in s.21 is itself a potential source of controversy if reports are perceived to be insufficiently detailed or if they reveal prolonged investigations without charge. Because the Act contains no express confidentiality regime for the report, tension between transparency and the fair-trial rights of uncharged persons may arise.

Most practitioners do not immediately appreciate that the Act effectively requires two parallel historical inquiries. The first is whether the act would have been one of the enumerated offences under the law in force in “some part of Australia” at the time it was committed (s.6(3)). That exercise can involve obscure 1939–1945 State or Territory statutes or common-law rules that have long since been repealed or superseded. The second inquiry is whether any defence available at that time could have been established (s.6(2)). Defence counsel must therefore retain historians of Australian criminal law as well as experts in Second World War military law.

A second trap lies in the absolute-liability provision (s.9(3)). Because the physical element of “the relevant act was … an offence mentioned in that subsection” attracts absolute liability, neither ignorance nor honest and reasonable mistake about the legal characterisation of the conduct is a defence. This is counter-intuitive for offences that are otherwise fault-based.

The venue rule in s.14 contains an unusual onus: the magistrate or judge must transfer unless satisfied on the balance of probabilities that the defendant was a resident of the charging jurisdiction or was not a resident of the proposed new jurisdiction. The default position therefore favours transfer, and the prosecution bears the practical burden of adducing evidence of residence.

Section 17(4) and (5) create an asymmetrical evidentiary burden. The defendant need only point to “evidence of the existence of the facts constituting the defence”; the prosecution then bears the full legal onus. In practice this can lead to defence counsel tendering minimal material (sometimes a single document or short witness statement) and then forcing the prosecution to disprove the defence beyond reasonable doubt with expert evidence that may be expensive and time-consuming to obtain.

The stay discretion in s.13(5) is framed as a judicial satisfaction on the balance of probabilities that three cumulative conditions exist. Because the accused must satisfy the judge of those matters, the provision places an affirmative evidentiary burden on the defence. Many practitioners assume that delay alone will ground a stay; the Act requires proof of substantial prejudice to the preparation or conduct of the defence and that the interests of justice require the order. Courts are likely to expect concrete examples of lost evidence rather than generalised assertions of faded memory.

Finally, s.11 is absolute in form: a person shall not be charged unless he or she is an Australian citizen or a resident. There is no discretion to charge a non-resident even if the person is temporarily in Australia or has substantial connections. This can produce the anomaly that a suspected perpetrator who has carefully avoided acquiring Australian citizenship or residency remains beyond the reach of the Act even while physically present.

Compliance with the War Crimes Act 1945 is relevant to three distinct groups: potential targets of investigation, Commonwealth officers administering the Act, and legal practitioners advising either side.

For any person who fears they may fall within the historical class, there is no prospective “compliance” possible; the conduct is long past. The only practical step is to preserve any contemporaneous documents, diaries, orders or correspondence that might support a s.17 defence or a s.13(5) stay application. Once an investigation commences, the person should immediately seek legal advice on whether to make a s.14 venue application within the “as soon as reasonably practicable” window. If evidence has been lost, an early and detailed affidavit particularising the missing material, the steps previously taken to obtain it, and the prejudice that has resulted will be essential to any s.13(5) application.

For the Attorney-General and officers of the Department of the Attorney-General, compliance centres on the mandatory duties in ss.19 and 21. Every application for legal or financial assistance must be considered on its merits, with hardship a mandatory relevant factor. A refusal must be accompanied by written reasons and an invitation to consent to parliamentary tabling. Where any investigation or proceeding has occurred in a financial year, the annual report must be prepared “as soon as practicable” after year-end and must contain the precise information listed in s.21(2). Failure to table the report within 15 sitting days would breach the Act.

Investigative agencies must be alive to the absolute-liability rule in s.9(3) and the exclusion of certain Criminal Code complicity provisions. Charging documents must plead the precise route or routes by which the conduct is said to constitute a war crime under s.7, because s.8(3) and (4) limit the available pathways. Prosecutors must also anticipate that once the defendant adduces any evidence of a s.17 defence the onus shifts, requiring early identification and briefing of international-law and military-law experts.

Defence practitioners must master the unusual historical-law exercise required by ss.6(2) and 13(2). Early retention of expert evidence on both the content of 1940s Australian criminal law and the laws, customs and usages of war is prudent. When advising on a potential stay application, counsel should obtain concrete evidence (archival searches, witness statements about destroyed records, medical evidence of memory impairment) rather than relying on generalised delay. In any jury trial, careful attention must be given to the precise wording of s.18 alternative-verdict directions; failure to require the jury to specify the paragraph of s.6(1) engaged has the potential to invalidate the verdict.

Finally, all parties should be conscious of the parliamentary-accountability overlay. Material placed before the Houses under ss.19(6) or 21(3) loses any confidentiality that might otherwise attach. Advice given to clients should therefore address the risk that reasons for refusal of assistance, or details of ongoing investigations, may become public documents.