International Criminal Court Act 2002

Part 1—Preliminary

1 Short title

This Act may be cited as the International Criminal Court Act 2002.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Part</span><span> </span><span>1 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day after this Act receives the Royal Assent</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>28</span><span> </span><span>June 2002</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Parts</span><span> </span><span>2 to 14</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>A single day to be fixed by Proclamation, subject to subsections</span><span> </span><span>(3) to (6)</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>26</span><span> </span><span>September 2002 (</span><span style="font-style:italic">Gazette</span><span> 2002, No. GN38)</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>3.</span><span> </span><span>Schedule</span><span> </span><span>1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day after this Act receives the Royal Assent</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>28</span><span> </span><span>June 2002</span></p></td></tr></tbody></table>

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. (3) A Proclamation under item 2 of the table must not specify a day that occurs before the day on which the Statute enters into force for Australia. (4) Subject to subsection (5), if a provision covered by item 2 of the table does not commence within the period of one month beginning on the day on which the Statute enters into force for Australia, it commences on the first day after the end of that period. (5) If a provision commences as a result of subsection (4), the Minister must announce by notice in the Gazette the day on which the provision commenced. (6) If sections 3 to 338 of the Proceeds of Crime Act 2002 have not commenced before the day fixed under column 2 of item 2 of the table, Division 14 of Part 4, and Part 11, commence immediately after the commencement of those sections.

3 Principal object of Act

(1) The principal object of this Act is to facilitate compliance with Australia’s obligations under the Statute. (2) Accordingly, this Act does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.

Note: The crimes within the jurisdiction of the ICC are set out as crimes in Australia in Division 268 of the Criminal Code.

4 Definitions

In this Act, unless the contrary intention appears:

account has the same meaning as in the Proceeds of Crime Act.

agent has the same meaning as in the Proceeds of Crime Act.

appropriate authority, in relation to an authorisation given by the Attorney‑General for the purposes of compliance with a request by the ICC for assistance of a particular type, means:

(a) an officer of the Commonwealth; or
(b) a police officer;

authorised by the Attorney‑General to act in connection with the provision of the assistance.

appropriate court means the Federal Court or the Supreme Court of a State.

appropriate Ministerial consent to the service by an ICC prisoner in Australia of a sentence of imprisonment imposed by the ICC means consent to the sentence being served in Australia given by:

(a) the Attorney‑General; and
(b) the Minister administering the Migration Act 1958; and
(c) the State Minister of the State in which the prisoner is to begin to serve the sentence.

Australia, when used in a geographical sense, includes all the external Territories.

Australian law means a law of the Commonwealth, a law of a State or a law of a Territory.

authenticated by the ICC means authenticated by the ICC under the Statute or the Rules.

authorised officer has the same meaning as in the Proceeds of Crime Act.

benefit has the same meaning as in the Proceeds of Crime Act.

carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5‑4 or 5‑4A of that Act).

child has the same meaning as in Part ID of the Crimes Act 1914.

communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

conduct means:

(a) an act; or
(b) an omission to perform an act.

constable has the same meaning as in the Crimes Act 1914.

crime within the jurisdiction of the ICC means:

(a) an international crime; or
(b) an offence against the administration of the ICC’s justice.

DPP means the Director of Public Prosecutions.

eligible law enforcement officer has the meaning given by subsection 79A(2).

enforcement agency has the same meaning as in the Proceeds of Crime Act.

enforcement conditions has the meaning given by subsection 160(1).

escort officer, in relation to an ICC prisoner, means the police officer, prison officer or other person specified in the warrant authorising the transfer of the ICC prisoner under Part 12 as the escort officer for the ICC prisoner.

evidence includes expert evidence.

evidential material means:

(a) in Subdivision F of Division 14 of Part 4—evidence relating to:
(i) property in relation to which a forfeiture order has been or could be made; or
(ii) property in relation to which a restraining order has been or could be made for the purposes of section 82; or
(iii) property of a person in relation to whom a pecuniary penalty order may be enforced as described in section 159; or
(iv) proceeds of a crime within the jurisdiction of the ICC; or
(v) benefits derived from the commission of a crime within the jurisdiction of the ICC; or
(b) otherwise—a thing relevant to a crime within the jurisdiction of the ICC, including such a thing in electronic form.

examination of a site that is a grave includes exhumation of the grave.

executing officer, in relation to a warrant, means:

(a) the police officer named in the warrant, by the magistrate who issued the warrant, as being responsible for executing the warrant; or
(b) if that police officer does not intend to be present at the execution of the warrant—another police officer whose name has been written in the warrant by the police officer so named; or
(c) another police officer whose name has been written in the warrant by the police officer last named in the warrant.

Federal Court means the Federal Court of Australia.

federal prisoner means a person who:

(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of the Commonwealth or of a Territory; or
(b) is under a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory, or is otherwise subject to detention under a law of the Commonwealth or of a Territory;

but does not include a person who is at large after having escaped from lawful custody.

financial institution has the same meaning in Division 14 of Part 4, and in Part 11, as that expression has in the Proceeds of Crime Act.

forensic evidence has the same meaning as in Part ID of the Crimes Act 1914.

forensic material has the same meaning as in Part ID of the Crimes Act 1914.

forensic procedure has the same meaning as in Part ID of the Crimes Act 1914.

forfeiture order means an order made by the ICC under paragraph 2(b) of article 77 of the Statute for the forfeiture of proceeds of a crime within the jurisdiction of the ICC.

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

ICC means the International Criminal Court established under the Statute, and includes any of the organs of that Court within the meaning of the Statute.

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

incapable person has the same meaning as in Part ID of the Crimes Act 1914.

interception warrant information has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

interest, in relation to property, has the same meaning as in the Proceeds of Crime Act.

international crime means a crime in respect of which the ICC has jurisdiction under article 5 of the Statute.

law, in relation to the Commonwealth, a State or a Territory, means a law (whether written or unwritten) of the Commonwealth, of that State or of that Territory, and includes a law (whether written or unwritten) in force in the Commonwealth, in that State or in that Territory or in any part of the Commonwealth, of that State or of that Territory.

law enforcement agency has the same meaning as in the Surveillance Devices Act 2004.

law enforcement officer has the same meaning as in the Surveillance Devices Act 2004.

lawfully intercepted information has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

lawfully obtained in Australia has a meaning affected by subsection 69A(3).

offence against the administration of the ICC’s justice means an offence against the administration of the ICC’s justice referred to in article 70 of the Statute.

officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act.

officer assisting, in relation to a warrant, means:

(a) a person who is a police officer and who is assisting in executing the warrant; or
(b) a person who is not a police officer and has been authorised by the relevant executing officer to assist in executing the warrant.

Official Trustee means the Official Trustee in Bankruptcy.

ordinary search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.

parent has the same meaning as in the Crimes Act 1914.

person assisting has the same meaning as in the Proceeds of Crime Act.

POCA search warrant means a search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC.

police officer means:

(a) a member or special member (within the meaning of the Australian Federal Police Act 1979) of the Australian Federal Police; or
(b) a member of the police force or police service of a State.

police station includes:

(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.

possession, in relation to a thing, includes having the thing under control in any place whatsoever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

premises includes a place and a conveyance.

Pre‑Trial Chamber means the Pre‑Trial Chamber of the ICC.

prisoner, except in the expression ICC prisoner, means a federal prisoner or a State prisoner.

prison officer means a person appointed or employed to assist in the management of a prison.

proceeds of a crime within the jurisdiction of the ICC means proceeds (within the meaning of the Proceeds of Crime Act) of such a crime.

proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act.

Proceeds of Crime Act means the Proceeds of Crime Act 2002.

proceeds of crime authority has the same meaning as in the Proceeds of Crime Act.

Note: Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the DPP (see the definition of proceeds of crime authority in section 338 of that Act).

proceeds request has the meaning given by section 81.

property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.

Prosecutor means the Prosecutor of the ICC.

recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.

related crime within the jurisdiction of the ICC: a crime within the jurisdiction of the ICC is related to another crime within the jurisdiction of the ICC if the physical elements of the 2 crimes are substantially the same acts or omissions.

request for arrest and surrender of a person means a request made to Australia by the ICC for the arrest and surrender of the person and, if a request has previously been made by the ICC for the provisional arrest of the person, includes a subsequent request made by the ICC for the surrender of the person.

request for cooperation has the meaning given by section 7.

request for provisional arrest of a person means a request made to Australia by the ICC for the provisional arrest of the person.

request for surrender of a person means a request made by the ICC for the surrender of the person, whether in conjunction with a request made by the ICC for the arrest of the person or subsequent to a request made by the ICC for the provisional arrest of the person.

responsible enforcement agency head means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant.

restraining order means a restraining order under section 17 of the Proceeds of Crime Act.

Rules means the Rules of Procedure and Evidence in force under article 51 of the Statute.

search warrant (except in Part 4) means a warrant issued under section 111.

seizable item means anything that would present a danger to a person or could be used to assist a person to escape from lawful custody.

senior police officer has the meaning given by subsection 88(3).

serve a sentence imposed by the ICC includes complete the service of such a sentence that has been partly served.

State includes the Australian Capital Territory and the Northern Territory.

State Minister means:

(a) in relation to a particular State other than the Australian Capital Territory or the Northern Territory—the Minister of the State administering the law of the State relating to the transfer of prisoners; and
(b) in relation to the Australian Capital Territory—the Minister for the Australian Capital Territory administering the law of the Australian Capital Territory relating to the transfer of prisoners; and
(c) in relation to the Northern Territory—the Minister for the Northern Territory administering the law of the Northern Territory relating to the transfer of prisoners;

and includes any Minister acting for the time being for or on behalf of the Minister referred to in any of the above paragraphs and any person to whom the Minister so referred to has delegated any of the Minister’s functions under this Act.

State prisoner means a person who:

(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of a State; or
(b) is under a sentence of imprisonment for an offence against a law of a State, or is otherwise subject to detention under a law of a State;

but does not include a person who is at large after having escaped from lawful custody.

Statute means the Statute of the International Criminal Court done at Rome on 17 July 1998, a copy of the English text of which is set out in Schedule 1.

statutory form, in relation to a warrant, notice, application or direction, means the form of the warrant, notice, application or direction, as the case may be, set out in the regulations.

stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

strip search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person’s body (but not of the person’s body cavities) and of those garments.

superintendent of a prison means the person for the time being in charge of the prison.

surrender of a person means surrender of the person to the ICC.

surrender warrant means a warrant issued under section 28.

telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

Territory does not include the Australian Capital Territory or the Northern Territory.

Trial Chamber means the Trial Chamber of the ICC.

warrant premises means premises in relation to which a search warrant is in force.

5 Act to bind Crown

This Act binds the Crown in right of the Commonwealth and in right of each of the States.

6 External Territories

This Act extends to each external Territory.

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for: (a) assistance in connection with any one or more of the following: (i) the arrest (including the provisional arrest), and surrender to the ICC, of a person in relation to whom the ICC has issued a warrant of arrest or a judgment of conviction; (ii) the identification and whereabouts of a person or the location of items; (iii) the taking of evidence, including testimony on oath, and the production of evidence, including expert opinions and reports necessary to the ICC; (iv) the questioning of any person being investigated or prosecuted; (v) the service of documents, including judicial documents; (vi) facilitating the voluntary appearance of persons (other than prisoners) before the ICC; (vii) the temporary transfer of prisoners to the ICC; (viii) the examination of places or sites; (ix) the execution of searches and seizures; (x) the provision of records and documents, including official records and documents; (xi) the protection of victims or witnesses or the preservation of evidence; (xii) the identification, tracing, and freezing or seizure, of the proceeds of crimes within the jurisdiction of the ICC for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (b) any other type of assistance that is not prohibited by Australian law, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes. (2) This Act does not prevent the provision of assistance to the ICC otherwise than under this Act, including assistance of an informal nature.

8 How requests for cooperation are to be made

(1) Subject to section 9, a request for cooperation is to be made in writing: (a) to the Attorney‑General through the diplomatic channel; or (b) through the International Criminal Police Organisation or any other appropriate regional organisation. (2) If a request for cooperation is sent to, or received by, a person to whom the Attorney‑General has delegated a power to deal with the request, the request is taken for the purposes of this Act to have been sent to, or received by, the Attorney‑General.

9 Urgent requests for cooperation and requests for provisional arrest

(1) A request for cooperation made in urgent cases, and any request for provisional arrest, may be made by using any medium capable of delivering a written record. (2) If a request is made or sent in the first instance in a manner specified in subsection (1), it must be followed as soon as practicable by a formal request made in accordance with section 8.

10 Execution of requests

(1) A request for cooperation must be executed in accordance with the relevant procedure under the applicable Australian law (as provided in this Act). (2) If the request states that it should be executed in a particular manner that is not prohibited by Australian law or by using a particular procedure that is not prohibited by Australian law, the Attorney‑General must use his or her best efforts to ensure that the request is executed in that manner or by using that procedure, as the case may be. (3) This section does not affect the operation of subsection 106(1) (which allows the Prosecutor in certain circumstances to execute a request for cooperation to which Part 4 applies) or section 107 (which allows the Prosecutor in certain circumstances to conduct investigations in Australia).

11 Consultations with ICC

(1) The Attorney‑General must consult with the ICC, without delay, if, for any reason, there are or may be problems with the execution of a request for cooperation. (2) Before refusing a request for assistance of a kind mentioned in paragraph 1(l) of article 93 of the Statute, the Attorney‑General must consult with the ICC to ascertain whether the assistance requested could be provided: (a) subject to conditions; or (b) at a later date or in an alternative manner. (3) Without limiting the types of conditions under which assistance may be provided, the Attorney‑General may agree to information or documents being sent to the Prosecutor on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of generating new evidence. (4) If the Attorney‑General sends information or documents subject to the condition specified in subsection (3), the Attorney‑General may subsequently consent to the disclosure of the documents or information for use as evidence under the provisions of Parts 5 and 6 of the Statute and in accordance with the Rules.

12 Request that may raise problems relating to Australia’s international obligations to a foreign country

(1) This section applies where the Attorney‑General consults with the ICC because the execution of a request for cooperation may raise problems relating to Australia’s obligations to a foreign country under international law or international agreements as mentioned in article 98 of the Statute. (2) If, after the consultation, the Attorney‑General is satisfied that the execution of the request would not conflict with any of those obligations, the Attorney‑General must sign a certificate stating that the execution of the request does not conflict with any of those obligations. (3) A certificate signed under subsection (2) is conclusive evidence of the matters stated in the certificate. (4) If, after the consultation, the Attorney‑General is not satisfied as mentioned in subsection (2), the Attorney‑General must postpone the execution of the request unless and until the foreign country has made the necessary waiver or given the necessary consent.

13 Confidentiality of request

(1) A person dealing with a request for cooperation must keep the request, and any documents supporting it, confidential except to the extent that it is necessary to disclose the request or such a document for the purpose of executing the request. (2) If the ICC requests that particular information made available in connection with a request for cooperation be provided and handled in a manner that protects the safety, or physical or psychological well‑being, of any victims, potential witnesses and their families, a person dealing with the request must ensure that the information is provided and handled in that manner.

14 Response to be sent to ICC

(1) The Attorney‑General must notify the ICC, without undue delay, of his or her response to a request for cooperation and of the outcome of any action that has been taken in relation to the request. (2) If the Attorney‑General decides, in accordance with the Statute and this Act, to refuse or postpone the assistance requested, wholly or partly, the notice to the ICC must set out the reasons for the decision. (3) If the request for cooperation cannot be executed for any other reason, the notice to the ICC must set out the reasons for the inability or failure to execute the request. (4) In the case of an urgent request for cooperation, any documents or evidence produced in response must, if the ICC requests, be sent urgently to it. (5) Documents or evidence provided or produced in response to a request for cooperation must be sent to the ICC in the original language and form.

15 Attorney‑General must take into account ICC’s ability to refer matter to Assembly of States Parties or Security Council

In determining what action to take in relation to a request for cooperation, the Attorney‑General must take into account the power of the ICC to refer the matter to the Assembly of States Parties or to the Security Council in accordance with paragraph 7 of article 87 of the Statute if the ICC finds that, contrary to the provisions of the Statute, Australia has failed to comply with the request.