An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
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.
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.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 1—Preliminary
16 Application of Part
This Part applies to a request for arrest and surrender, or a request for provisional arrest, of a person.
Division 2—Documentation to accompany request
17 Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued
If a request is made for arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre‑Trial Chamber under article 58 of the Statute, the request must contain or be supported by:
(a) information describing the person sought, being information sufficient to identify the person; and
(b) information as to the person’s probable location; and
(c) a copy of the warrant of arrest, authenticated by the ICC; and
(d) any other documents, statements or information required by or under the regulations.
18 Documentation for request for arrest and surrender of person already convicted
If a request is made for arrest and surrender of a person who has already been convicted, the request must contain or be supported by:
(a) a copy of any warrant of arrest for the person, authenticated by the ICC; and
(b) a copy of the judgment of conviction, authenticated by the ICC; and
(c) information to demonstrate that the person sought is the person referred to in the judgment of conviction; and
(d) if the person sought has been sentenced:
(i) a copy of the sentence imposed, authenticated by the ICC; and
(ii) in the case of a sentence of imprisonment—a statement of any period already served and the period remaining to be served.
19 Documentation for request for provisional arrest
If a request is made for provisional arrest of a person, the request must contain or be supported by:
(a) information describing the person sought, being information sufficient to identify the person; and
(b) information as to the person’s probable location; and
(c) a concise statement of:
(i) the crimes within the jurisdiction of the ICC for which the person’s arrest is requested; and
(ii) the facts that are alleged to constitute those crimes, including, where possible, the dates when, and the locations at which, the crimes are alleged to have been committed; and
(d) a statement of the existence of a warrant of arrest, or of a judgment of conviction, against the person sought; and
(e) a statement that a request for surrender of the person will follow.
Division 3—Arrest of persons
20 Arrest following request for arrest and surrender
(1) Subject to section 22, if:
(a) the Attorney‑General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney‑General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) If the Attorney‑General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.
(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.
(4) After the warrant has been issued, the magistrate must without delay send to the Attorney‑General a report stating that the magistrate has issued the warrant.
21 Arrest following request for provisional arrest
(1) Subject to section 22, if:
(a) the Attorney‑General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney‑General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) If the Attorney‑General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.
(3) After the warrant has been issued, the magistrate must without delay send to the Attorney‑General a report stating that the magistrate has issued the warrant.
22 Certificate by Attorney‑General
The Attorney‑General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney‑General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.
23 Remand
(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:
(a) give to the person under arrest a written notice that:
(i) specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that is alleged to constitute that crime; and
(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.
(2) The magistrate must satisfy himself or herself whether:
(a) the person is the person specified in the warrant; and
(b) the person was arrested in accordance with this Act; and
(c) section 131 has been complied with in respect of the arrest.
(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.
(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney‑General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.
(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.
(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:
(a) the gravity of the alleged crimes within the jurisdiction of the ICC;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.
(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.
24 Procedure following application for bail
(1) If an application for bail is made, the Attorney‑General must notify the ICC.
(2) The Attorney‑General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.
(3) Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.
(4) If the person is granted bail, the Attorney‑General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.
(5) This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.
25 Release from remand on the Attorney‑General’s direction
(1) The Attorney‑General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:
(a) where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or
(b) in any case—after considering the matters mentioned in subsection 23(6), the Attorney‑General considers for any other reason that the remand should cease.
(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney‑General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.
26 Release from remand after certain periods
(1) A person must be brought before a magistrate if:
(a) the person was arrested under a warrant issued under subsection 21(2); and
(b) the person is, under this Division, on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under subsection 20(1) in relation to the person.
(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:
(a) order the release of the person from custody; or
(b) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.
(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:
(a) the person must be brought before a magistrate; and
(b) the magistrate must:
(i) order the release of the person from custody; or
(ii) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.
27 Application for search warrants
(1) If:
(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.
(2) If:
(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.
(3) For the purposes of this section, the applicable period is:
(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.
Note: Part 6 deals with search warrants.
Division 4—Surrender of persons
28 Surrender warrants
(1) Except where this Division otherwise provides, if a person is remanded under Division 3, the Attorney‑General may, subject to section 29, issue a warrant for the surrender of the person.
(2) The surrender warrant must be in writing in the statutory form.
29 Certificate by Attorney‑General
The Attorney‑General must not issue a warrant for the surrender of a person for a crime unless the Attorney‑General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.
30 Surrender warrant may take effect at later date
(1) This section applies if, apart from this subsection, the Attorney‑General would be required to issue a surrender warrant for a crime within the jurisdiction of the ICC in respect of a person who is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against Australian law.
(2) The Attorney‑General may, after consultation with the ICC, do either of the following:
(a) instead of issuing a surrender warrant that has an immediate effect, issue a surrender warrant that is to come into effect when the person ceases to be liable to be detained;
(b) issue a surrender warrant that has a temporary operation in accordance with conditions agreed with the ICC.
31 Refusal of surrender
(1) The Attorney‑General must refuse a request for surrender of a person if the ICC determines that the case is inadmissible and subsection 33(4), 35(3) or 36(3) applies.
(2) The Attorney‑General may refuse a request for surrender of a person if:
(a) there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies; or
(b) there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to different conduct, and subsection 40(3) applies.
(3) The restrictions on extradition specified in the Extradition Act 1988 do not apply in relation to a request for surrender of a person.
32 Postponement of execution of request for surrender
(1) The Attorney‑General may postpone the execution of a request for surrender of a person for a crime within the jurisdiction of the ICC at any time before the person is surrendered if, and only if:
(a) a determination on admissibility of the kind specified in section 33, 35 or 36 is pending before the ICC; or
(b) the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct that constituted the crime, as provided in section 34; or
(c) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.
(2) If the Attorney‑General postpones the execution of the request, the postponement may be for a reasonable period and may, if the Attorney‑General considers it desirable, be extended from time to time.
(3) A decision by the Attorney‑General to postpone the execution of a request:
(a) does not limit or affect the detention of a person under a warrant issued under this Part; and
(b) does not affect the validity of any act done or any warrant issued under this Part before the decision was made.
(4) However, if:
(a) the person applies to an appropriate court to be released; and
(b) the court is satisfied that reasonable notice of the intention to make the application has been given to the Attorney‑General;
the court may, unless the person is liable to be detained under any other order or other sufficient cause is shown against the release, order the release of the person from the place where the person is detained.
33 Previous proceedings against person sought
(1) This section applies if the person whose surrender is sought alleges to the Attorney‑General that:
(a) the case is one to which paragraph 1 of article 20 of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or
(b) the person has been tried by another court for conduct also proscribed under article 6, 7 or 8 of the Statute and the case is not one to which paragraph 3(a) or (b) of article 20 of the Statute applies.
(2) The Attorney‑General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.
(3) If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.
(4) If the ICC has determined that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground of the person’s previous conviction, acquittal or trial, as the case may be, in respect of the relevant conduct.
(5) If an admissibility determination is pending, the Attorney‑General may postpone the execution of a request until the ICC has made its determination.
34 Ongoing Australian investigation or prosecution involving different conduct
(1) This section applies if a request for surrender of a person is made that would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct constituting the crime within the jurisdiction of the ICC to which the request relates.
(2) The Attorney‑General may, after consultation with the ICC:
(a) proceed with the execution of the request despite the Australian investigation or prosecution; or
(b) postpone the execution of the request until the Australian investigation or prosecution has been finally disposed of.
(3) Nothing in this section limits or affects section 30 (which allows the Attorney‑General to issue a surrender warrant that comes into effect at a later date if a person is serving a sentence for a different offence against Australian law).
35 Person being investigated or prosecuted in Australia for same conduct
(1) This section applies if:
(a) a request for surrender of a person is made; and
(b) the request relates to conduct that would constitute an offence under Australian law; and
(c) either:
(i) the conduct is being investigated or prosecuted in Australia; or
(ii) the conduct has been investigated in Australia, and a decision was made not to prosecute the person sought; and
(d) a challenge to the admissibility of the case is being or has been made to the ICC under paragraph 2(b) of article 19 of the Statute.
(2) The Attorney‑General may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.
(3) If the ICC determines that the case is inadmissible, surrender must be refused.
(4) If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
36 Challenges to admissibility in other cases
(1) This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute, other than a challenge of the kind referred to in section 33 or 35.
(2) The Attorney‑General may, pending a determination by the ICC on the admissibility challenge, postpone the execution of a request under this Part in respect of the crime within the jurisdiction of the ICC to which the challenge relates.
(3) If the ICC determines that the case to which the request relates is inadmissible, surrender must be refused.
(4) If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
37 Request from ICC and a foreign country relating to same conduct
If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney‑General:
(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.
38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is a party to the Statute.
(2) Priority must be given to the request from the ICC if:
(a) the ICC has, under article 18 or 19 of the Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country in respect of its request for extradition; or
(b) the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.
(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:
(a) the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but
(b) no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.
39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is not a party to the Statute.
(2) Priority must be given to the request for surrender if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
(3) The request for extradition by the foreign country may continue to be dealt with if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
(4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.
(6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney‑General must determine whether to surrender the person or to extradite the person to the foreign country.
(7) In making the determination under subsection (6), the Attorney‑General must consider all relevant matters, including, but not limited to:
(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent surrender between the ICC and the foreign country.
40 Request from ICC and foreign country relating to different conduct
(1) If a request for surrender of a person is made and a foreign country requests the extradition of the person for conduct other than the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney‑General must determine whether the person is to be surrendered or is to be extradited to the foreign country.
(2) If Australia is not under an international obligation to extradite the person to the foreign country, priority must be given to the request from the ICC.
(3) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney‑General must determine whether to surrender the person or to extradite the person to the foreign country.
(4) In making the determination under subsection (3), the Attorney‑General must consider all relevant matters, including, but not limited to, the matters specified in subsection 39(7), but must give special consideration to the relative nature and gravity of the conduct for which surrender and extradition are sought.
41 Notification of decision on extradition to foreign country
(1) If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney‑General subsequently refuses to extradite the person to the foreign country under the Extradition Act 1988, the Attorney‑General must notify the ICC of the refusal.
(2) The obligation in this section is in addition to the requirement of section 14 for the Attorney‑General to respond formally to the request from the ICC.
42 Detention following surrender warrants
(1) If the Attorney‑General issues a surrender warrant in relation to a person who is on bail, the person must be brought as soon as practicable before a magistrate in the State or Territory in which the person is on remand.
(2) The magistrate must remand the person in custody for such period or periods as may be necessary to enable the warrant to be executed.
43 Content of surrender warrants
(1) A surrender warrant in relation to the person (the relevant person) must:
(a) require the person in whose custody the relevant person is being held to release the relevant person into the custody of a police officer; and
(b) authorise the police officer to transport the relevant person in custody, and, if necessary or convenient, to detain the relevant person in custody, for the purpose of enabling the relevant person:
(i) to be placed in the custody of a specified person who is an officer of the ICC or other person authorised by the ICC; and
(ii) to be transported to a place specified by the ICC; and
(c) authorise the specified person to transport the relevant person in custody to a place specified by the ICC for the purpose of surrendering the relevant person to a person appointed by the ICC to receive the person.
(2) A place referred to in paragraph (1)(b) or (c) may be a place in or outside Australia.
44 Execution of surrender warrants
Subject to this Division, a surrender warrant must be executed according to its terms.
45 Release from remand
(1) If:
(a) a surrender warrant has been issued in relation to a person; and
(b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and
(c) the person applies to the Supreme Court of the State or Territory in which the person is in custody; and
(d) reasonable notice of the intention to apply has been given to the Attorney‑General;
the Court must, subject to subsection (2), order that the person be released from that custody.
(2) However, if the Court is satisfied that the surrender warrant has not been executed within the period of 21 days, or since the person last made an application under subsection (1), as the case may be:
(a) because to do so would have endangered the person’s life, or would have prejudiced the person’s health; or
(b) for any other reasonable cause;
the Court must not order that the person be released from custody.
46 Effect of surrender to ICC on person’s terms of imprisonment
(1) If, at the time when a person was surrendered in connection with a crime within the jurisdiction of the ICC, the person was serving a sentence of imprisonment in respect of an offence against a law of the Commonwealth or of a Territory, or was otherwise subject to detention under a law of the Commonwealth or of a Territory:
(a) any period spent by the person in custody in connection with the surrender warrant; and
(b) subject to subsection (2), any period spent by the person in custody in connection with detention by, or on the order of, the ICC in respect of the crime;
are to be counted as periods served towards the sentence of imprisonment or period of detention.
(2) If the person is convicted of the crime within the jurisdiction of the ICC, the period spent by the person in custody serving a sentence of imprisonment imposed by the ICC for the crime is not to be counted as a period towards the sentence of imprisonment or period of detention referred to in subsection (1).
(3) A reference in this section to a period spent in custody includes a reference to a period spent in custody outside Australia.
47 Expiry of Australian sentences while under ICC detention
If:
(a) at the time when a person was surrendered, the person was serving a sentence of imprisonment in respect of an offence against an Australian law, or was otherwise subject to detention under an Australian law; and
(b) each such sentence of imprisonment that the person was serving, or each such period of detention to which the person was subject, at that time expires while the person is being detained by, or on the order of, the ICC;
the Attorney‑General must without delay inform the ICC of the expiry.
48 Waiver of rule of speciality
(1) If the ICC requests Australia under paragraph 2 of article 101 of the Statute to waive the requirements of paragraph 1 of that article in respect of a person surrendered by Australia, the Attorney‑General may waive the requirements accordingly.
(2) Before deciding whether to waive the requirements, the Attorney‑General may request the ICC to provide additional information in accordance with article 91 of the Statute.
Part 4—Other requests by ICC
Division 1—Preliminary
49 Application of Part
This Part applies to a request for cooperation other than a request for arrest and surrender, or a request for provisional arrest, of a person.
Division 2—Documentation to accompany request
50 Documentation for request
(1) A request for cooperation (other than a request to which subsection (2) applies) must, as applicable, contain or be supported by:
(a) a concise statement of the purpose of the request and the assistance requested, including the legal basis and the grounds for the request; and
(b) as much detailed information as possible about the location or identification of any person or place that must be found or identified in order that the assistance requested can be provided; and
(c) a concise statement of the essential facts underlying the request; and
(d) the reasons for, and details of, any procedure or requirement to be followed; and
(e) any other information required under the regulations to enable the request to be executed; and
(f) any other relevant information that is necessary to enable the assistance to be provided.
(2) A request for transit under paragraph 3 of article 89 of the Statute must contain, or be accompanied by, the following information and documents:
(a) a description of the person to be transported;
(b) a brief statement of the facts of the case and their legal characterisation; and
(c) a copy of the warrant for arrest and surrender.
Division 3—Restrictions on provision of assistance
51 Refusal of assistance
(1) The Attorney‑General must refuse a request for cooperation in circumstances referred to in subsection 142(4) (which relates to third party information that cannot be disclosed).
(2) The Attorney‑General may refuse a request for cooperation:
(a) in circumstances referred to in Part 8 (which relates to the protection of national security interests); or
(b) if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or
(c) if there are competing requests from the ICC, and from a foreign country, relating to different conduct, and subsection 60(3) applies.
52 Postponement of execution of request
(1) The Attorney‑General may postpone the execution of a request for cooperation if, and only if:
(a) the execution of the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, and section 54 applies; or
(b) a determination of admissibility is pending before the ICC, and section 55 applies; or
(c) there are competing requests from the ICC and from a foreign country to which Australia is under an international obligation, and paragraph 56(2)(a) applies; or
(d) the request is for assistance under paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or
(e) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.
(2) Even if subsection (1) applies to a request for cooperation, the Attorney‑General may decide not to postpone the execution of the request and, in that event, the request must be dealt with in accordance with this Part.
(3) If the Attorney‑General postpones the execution of the request for cooperation, the postponement may be for a reasonable period and may, if the Attorney‑General considers it desirable, be extended from time to time.
53 Procedure if assistance precluded under Australian law
If:
(a) the execution of a particular measure of assistance specified in a request for cooperation is prohibited in Australia; and
(b) the Attorney‑General consults with the ICC in accordance with subsection 11(2) in respect of the request; and
(c) the matter is not resolved but the ICC modifies the request so that it can be dealt with under this Act;
the Attorney‑General must deal with the request accordingly.
54 Postponement where ongoing Australian investigation or prosecution would be interfered with
(1) If the immediate execution of a request for cooperation would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, the Attorney‑General may postpone the execution of the request for a period agreed between the Attorney‑General and the ICC.
(2) Despite subsection 52(3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.
(3) Before making a decision to postpone the execution of a request, the Attorney‑General must consider whether the assistance could be provided immediately subject to conditions.
(4) If the Attorney‑General decides to postpone the execution of a request and the ICC requests assistance in the preservation of evidence under paragraph 1(j) of article 93 of the Statute, the Attorney‑General must deal with the request in accordance with this Part.
55 Postponement where admissibility challenge
(1) This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute in respect of a case to which a request for cooperation relates.
(2) If the ICC has not made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney‑General may postpone the execution of the request until the ICC has made its determination on admissibility.
(3) If the ICC has made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney‑General may not postpone the execution of the request under this section but must deal with it under this Part.
(4) If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.
(5) If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
56 Competing requests
(1) If a request for cooperation is made and a foreign country makes a request for assistance to which Australia is under an international obligation to respond, the Attorney‑General must, after consultation with the ICC and that country, try to comply with both requests.
(2) For the purposes of subsection (1), the Attorney‑General may do either or both of the following:
(a) postpone the execution of either of the requests;
(b) attach conditions to the provision of assistance under either or both of the requests.
(3) If it is not possible to resolve the issue by consultation, the method of dealing with the requests must be resolved in accordance with sections 57 to 61.
57 Request from ICC and a foreign country relating to same conduct
If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney‑General:
(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 58 or 59, whether the request for cooperation or the request from the foreign country is to be complied with.
58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is a party to the Statute.
(2) Priority must be given to the request for cooperation if:
(a) the ICC has, under article 18 or 19 of the Statute, made a determination that the case is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country; or
(b) the ICC makes such a determination after receiving notification of the request from the foreign country.
(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:
(a) any preliminary steps required to be taken to give effect to the request from the foreign country may continue to be taken; but
(b) the request may not be complied with unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.
59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is not a party to the Statute.
(2) Priority must be given to the request for cooperation if:
(a) Australia is not under an international obligation to comply with the request from the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
(3) The request from the foreign country may continue to be dealt with if:
(a) Australia is not under an international obligation to comply with the request; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney‑General must determine whether the request for cooperation or the request from the foreign country is to be complied with.
(5) In making a determination under subsection (4), the Attorney‑General must consider all relevant matters, including, but not limited to:
(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.
60 Request from ICC and foreign country relating to different conduct
(1) If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to conduct other than the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney‑General must determine whether the request for cooperation or the request from the foreign country is to be complied with.
(2) If Australia is not under an international obligation to comply with the request from the foreign country, priority must be given to the request for cooperation.
(3) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney‑General must determine whether the request for cooperation or the request from the foreign country is to be complied with.
(4) In making a determination under subsection (3), the Attorney‑General must consider all relevant matters, including, but not limited to, the matters specified in subsection 59(5), but must give special consideration to the relative seriousness of the offences to which the requests relate.
61 Notification to ICC of decision refusing request by foreign country
(1) If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney‑General subsequently refuses the request for assistance from the foreign country, the Attorney‑General must notify the ICC of the refusal.
(2) The obligation in this section is in addition to the requirement of section 14 for the Attorney‑General to respond formally to the request for cooperation.
62 Requests involving competing international obligations
If a request for cooperation relates to a person who, or information or property that, is subject to the control of a foreign country or an international organisation under an international agreement, the Attorney‑General must inform the ICC so as to enable it to direct its request to the foreign country or international organisation.
Division 4—Identifying or locating persons or things
63 Assistance in identifying or locating persons or things
(1) This section applies if:
(a) the ICC requests assistance in locating, or identifying and locating, a person or thing; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person or thing is or may be in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing, the making of inquiries for the purpose of locating, or identifying and locating, the person or thing.
(3) If the Attorney‑General authorises the making of such inquiries, an appropriate authority is to locate, or identify and locate, the person or thing.
(4) The authority is to notify the Attorney‑General of the result of the inquiries.
(5) This section does not give to any person a power to enter premises.
Division 5—Taking evidence or producing documents or articles
64 Attorney‑General may authorise taking of evidence or the production of documents or articles
(1) This section applies if:
(a) the ICC requests that:
(i) evidence be taken in Australia; or
(ii) documents or other articles in Australia be produced; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) there are reasonable grounds for believing that the evidence can be taken, or the documents or other articles can be produced, as the case may be, in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing:
(a) the taking of evidence or production of documents or other articles; and
(b) the sending of evidence, documents or other articles to the ICC.
65 Taking of evidence
(1) If the Attorney‑General authorises the taking of evidence, a magistrate:
(a) must give written notice to each person from whom evidence is to be taken stating that the authorisation has been given and setting out the date and time when, and the place where, the evidence is to be taken; and
(b) may take the evidence on oath from each witness appearing before the magistrate to give evidence in relation to the matter.
(2) Evidence from a witness may be taken by means of video or audio technology.
(3) A magistrate who takes any such evidence must:
(a) cause the evidence to be recorded in writing or in any other form that the magistrate considers to be appropriate in the circumstances; and
(b) certify that the evidence was taken by the magistrate; and
(c) cause the writing, or other record of the evidence, so certified to be sent to the Attorney‑General.
66 Producing documents or other articles
(1) If the Attorney‑General authorises the production of documents or other articles, a magistrate:
(a) must give written notice to each person by whom documents or other articles are to be produced stating that the authorisation has been given and setting out the date and time when, and the place where, the documents or other articles are to be produced; and
(b) may require production of the documents or other articles.
(2) Subject to subsection (3), if the documents or other articles are produced, a magistrate must send them to the Attorney‑General together with a written statement certifying that they were produced to that magistrate.
(3) In the case of documents, a magistrate may send to the Attorney‑General copies of the documents certified by that magistrate to be true copies.
67 Legal representation
(1) The evidence of a witness may be taken under section 65 in the presence or absence of:
(a) the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates; or
(b) his or her legal representative (if any).
(2) The magistrate conducting a proceeding under either section 65 or 66, or both, may permit:
(a) if the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates has been notified of the proceeding before the magistrate—that person; and
(b) any other person giving evidence or producing documents or other articles at the proceeding before the magistrate; and
(c) a representative of the Prosecutor or of the ICC;
to have legal representation at the proceeding before the magistrate.
68 Form of certificates
A certificate by a magistrate under subsection 65(3) or 66(2) must state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present:
(a) the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, or his or her legal representative (if any);
(b) any other person giving evidence or producing documents or other articles, or his or her legal representative (if any).
69 Compellability of persons to attend etc.
(1) Subject to subsections (2) and (3), the laws of each State or Territory with respect to compelling persons:
(a) to attend before a magistrate; and
(b) to give evidence, answer questions, and produce documents or other articles;
on the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to so compelling persons for the purposes of this Division.
(2) For the purposes of this Division, the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, is competent but not compellable to give evidence.
(3) If:
(a) a person is required to give evidence, or produce documents or other articles, for the purposes of an investigation conducted by the Prosecutor or a proceeding before the ICC; and
(b) the person is not compellable to answer a particular question, or to produce a particular document or article, for the purposes of that investigation or proceeding;
the person is not compellable to answer the question, or produce the document or article, for the purposes of this Division.
Division 5A—Providing law enforcement agency material
69A Authorising provision of material obtained by law enforcement agencies
(1) The Attorney‑General may authorise, in writing, the provision of material to the ICC if:
(a) the ICC has requested the material; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) if the material is or includes lawfully intercepted information or interception warrant information—the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and
(iii) the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency.
(1A) The Attorney‑General may authorise, in writing, the provision of material to the ICC if:
(a) the ICC has requested the material; and
(b) the Attorney‑General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(c) the material is or includes protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979) that:
(i) was obtained in accordance with an international production order issued under Part 2 or 3 of that Schedule; or
(ii) relates to such an international production order; and
(d) if the material is or includes protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979) that:
(i) was obtained in accordance with an international production order issued under clause 30 or 60 of that Schedule; or
(ii) relates to such an international production order;
the Attorney‑General is satisfied that the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and
(e) the Attorney‑General is satisfied that the material is lawfully in the possession of a law enforcement agency.
(2) An authorisation under subsection (1) or (1A) may:
(a) specify the uses to which the material can be put by the ICC; and
(b) include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the ICC.
(3) Material lawfully obtained in Australia includes:
(a) material obtained from individuals or entities by consent; and
(b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.
Division 6—Questioning of person being investigated or prosecuted
70 Assistance in questioning persons
(1) This section applies if:
(a) the ICC requests assistance in questioning a person; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation of the person that is being conducted by the Prosecutor or to a prosecution of the person before the ICC; and
(ii) the person is or may be in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing, the questioning of the person.
(3) If the Attorney‑General authorises the questioning of the person, a magistrate is to ask the person in writing to appear before the magistrate at a specified time and place for the purpose of being questioned.
(4) If the person appears before the magistrate:
(a) the magistrate, a police officer or the DPP may ask the person questions to which the request relates; and
(b) the magistrate must cause a record in writing, or in another form that the magistrate considers to be appropriate in the circumstances, to be made of the questions asked and any answers given; and
(c) the magistrate must certify the correctness of the record; and
(d) the magistrate must cause the record so certified to be sent to the Attorney‑General.
(5) If the person refuses or fails to appear before the magistrate, the magistrate is to notify the Attorney‑General in writing of the refusal or failure.
71 Procedure where person questioned
(1) Before a person is questioned under section 70, the person must be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the ICC and that he or she has the following rights:
(a) the right to remain silent without such silence being a consideration in the determination of guilt or innocence;
(b) the right to have legal assistance of his or her choosing or, if he or she does not have legal assistance, to have legal assistance assigned to him or her in any case where the interests of justice so require and without payment by him or her in such a case if he or she does not have sufficient means to pay for the assistance;
(c) the right to have his or her legal representative present when he or she is questioned unless he or she has voluntarily waived that right.
(2) If there is any inconsistency between subsection (1) and any other Australian law, subsection (1) prevails.
(3) This section does not give to any person a power to require another person to answer questions.
Division 7—Service of documents
72 Assistance in arranging service of documents
(1) This section applies if:
(a) the ICC requests assistance in arranging for the service of a document in Australia; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person is or may be in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing, the service of the document.
(3) If the Attorney‑General authorises the service of the document, an appropriate authority is to:
(a) cause the document to be served:
(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Australia, or no procedure is specified—in accordance with Australian law;
and send to the Attorney‑General a certificate stating that the document has been served; or
(b) if the document is not served—send to the Attorney‑General a statement of the matters that prevented service.
(4) In this section:
document includes:
(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused person that has been issued under paragraph 7 of article 58 of the Statute.
(5) If:
(a) a document that is served on a person pursuant to an authority given under this section is a summons referred to in subsection (4); and
(b) the person fails to comply with the summons;
the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 12 months.
Division 8—Facilitating the voluntary appearance of persons (other than prisoners) as witnesses or experts before the ICC
73 Persons (other than prisoners) assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in facilitating the voluntary appearance of a person as a witness or expert before the ICC; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person’s appearance is requested so that the person can assist the investigation or give evidence at the proceeding; and
(iii) the person is in Australia and is not a prisoner; and
(iv) the person has consented in writing to assisting the investigation or giving evidence at the proceeding.
(2) The Attorney‑General is to execute the request by making arrangements for the travel of the person to the ICC.
Division 9—Temporary transfer of prisoners to the ICC
74 Prisoners assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in facilitating the temporary transfer of a person to the ICC; and
(b) the person is a prisoner who is in Australia (whether or not in custody); and
(c) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the prisoner’s attendance is requested for the purpose of assisting the investigation or giving evidence at the proceeding; and
(iii) the prisoner has consented in writing to assisting the investigation or giving evidence at the proceeding; and
(iv) the prisoner will be returned without delay by the ICC to Australia when the purposes of the transfer have been fulfilled.
(2) If the prisoner is being held in custody, the Attorney‑General is to execute the request by:
(a) if the prisoner is a federal prisoner and is not also a State prisoner—directing that the prisoner be released from prison for the purpose of travelling to the ICC to assist the investigation or give evidence at the proceeding; or
(b) if the prisoner is a federal prisoner and also a State prisoner—directing, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of such travel; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner—seeking any approvals required to be obtained from an authority of the relevant State;
and, in any case, subject to the giving of any necessary directions or the obtaining of any necessary approvals relevant to release of the prisoner, making arrangements for such travel in the custody of a police officer, or prison officer, appointed by the Attorney‑General for the purpose.
(3) If the prisoner, having been released from custody on parole, is not being held in custody, the Attorney‑General is to execute the request by:
(a) if the prisoner is a federal prisoner and is not also a State prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(b) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any parole decisions required to be obtained from an authority of the relevant State:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) seeking such parole decisions under the law of the relevant State as may be required;
and, in any case, subject to the obtaining of any necessary parole decisions, making arrangements for the travel of the prisoner to the ICC.
(4) In this section:
parole includes any order or licence to be at large.
parole decision means any approval, authority or permission relating to parole, and includes any variation of parole.
75 Effect of removal to foreign country on prisoners’ terms of imprisonment
A person who is serving 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, is taken to continue to serve that sentence of imprisonment, or to continue to be subject to that detention, at any time during which the person:
(a) is released from a prison under section 74 pursuant to a request by the ICC; and
(b) is in custody in connection with the request (including custody outside Australia).
Division 10—Examination of places or sites
76 Assistance in examining places or sites
(1) This section applies if:
(a) the ICC requests assistance in examining places or sites in Australia; and
(b) the Attorney‑General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC.
(2) The Attorney‑General is to execute the request by authorising, in writing, the examination of the places or sites.
(3) If the Attorney‑General authorises the examination of a place or site, an appropriate authority is to:
(a) examine the place or site in the way sought in the request; and
(b) make such report on the examination as the authority considers appropriate in the circumstances; and
(c) send the report to the Attorney‑General.
(4) An authorisation under this section confers power on a person acting under the authorisation to enter a place or site for the purpose of examining it.
Division 10A—Forensic procedures
76A Authorising application for carrying out of forensic procedures
(1) The Attorney‑General may authorise, in writing, a constable to apply under Part ID of the Crimes Act 1914 for an order for the carrying out of a forensic procedure on a person if:
(a) the ICC has requested the procedure to be carried out on the person; and
(b) the Attorney‑General is satisfied:
(i) that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) that the person is, or is believed to be, in Australia; and
(iii) that the ICC has given appropriate undertakings about the retention, use and destruction of forensic material, or of information obtained from analysing that material; and
(iv) that the ICC has given any other undertakings that the Attorney‑General considers necessary; and
(v) unless subsection (2) applies—that the person has been given an opportunity to consent to the forensic procedure and has not consented to it; and
(vi) if subsection (2) applies—of the matters in that subsection; and
(c) in the case of the person being a suspect, the constable is an authorised applicant.
(2) If the person is a child or an incapable person, the matters are:
(a) that either:
(i) the consent of a parent or guardian of the person cannot reasonably be obtained or has been withdrawn; or
(ii) a parent or guardian of the person is a suspect in relation to a crime or an offence to which the investigation or proceeding relates; and
(b) that, having regard to the best interests of the person, it is appropriate to make the authorisation.
(3) In this section:
authorised applicant has the same meaning as in subsection 23WA(1) of the Crimes Act 1914.
suspect has the same meaning as in subsection 23WA(1) of the Crimes Act 1914.
76B Providing forensic evidence to the ICC
(1) The Attorney‑General may direct a constable about how forensic evidence is to be provided to the ICC if:
(a) the Attorney‑General gave an authorisation to the constable under subsection 76A(1); and
(b) the forensic evidence resulted from the authorisation.
(2) A direction under subsection (1) is not a legislative instrument.
Division 11—Search and seizure
77 Attorney‑General may authorise applications for search warrants
(1) This section applies if:
(a) the ICC makes a request to the Attorney‑General compliance with which may involve the issue of a search warrant in relation to evidential material; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) there are reasonable grounds to believe that the material is in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing, a police officer to apply to a magistrate of the State or Territory in which that material is believed to be located for a search warrant.
78 Applications for search warrants
(1) If:
(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to the premises to search for that material.
(2) If:
(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to that person to search for that material.
(3) For the purposes of this section, the applicable period is:
(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.
Note: Part 6 deals with search warrants.
Division 11A—Stored communications
78A Authorising application for a stored communications warrant
The Attorney‑General may authorise, in writing, the Australian Federal Police, or the police force or police service of a State, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if:
(a) the Attorney‑General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) there are reasonable grounds to believe that stored communications relevant to the investigation or proceeding are held by a carrier; and
(b) the ICC has requested the Attorney‑General to arrange for access to the stored communications.
Note: Information obtained under the warrant may only be communicated to the ICC on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979.
Division 11B—Prospective telecommunications data
78B Authorising an authorisation for the disclosure of prospective telecommunications data
(1) The Attorney‑General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if:
(a) the ICC has requested the Attorney‑General to arrange for the disclosure of the information or documents; and
(b) the information or documents come into existence during a period specified by the ICC, and which started on or after the day the request was made; and
(c) the Attorney‑General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) the information or documents relate to the fact of a communication passing over a telecommunications system during that period.
Note: The information or documents will not be disclosed unless they are reasonably necessary for the investigation or proceeding (see subsection 180B(3) of that Act).
(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication.
Division 12—Provision of records or documents
79 Facilitating the provision of records or documents
(1) This section applies if:
(a) the ICC requests assistance for the provision of records or documents, including official records or official documents; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the records or documents are or may be in Australia.
(2) The Attorney‑General is to execute the request by authorising, in writing, the provision of the records or documents.
(3) If the Attorney‑General authorises the provision of records or documents, an appropriate authority is to:
(a) locate and make available the records or documents; and
(b) make such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send to the Attorney‑General the report and any of the records or documents that are located.
(4) This section does not give to any person power to require the production of a record or document.
Division 12A—Requests for surveillance devices
79A Authorising applications for surveillance device warrants
(1) The Attorney‑General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney‑General to arrange for the use of a surveillance device; and
(b) the Attorney‑General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney‑General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing information obtained as a result of the use of the device; and
(iii) any other matter the Attorney‑General considers appropriate.
Note: The eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the Surveillance Devices Act 2004).
(2) An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.
Division 12B—Requests for access to data held in computers
79B Authorising applications for computer access warrants
(1) The Attorney‑General may authorise, in writing, an eligible law enforcement officer to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney‑General to arrange for the access to data held in a computer (the target computer); and
(b) the Attorney‑General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney‑General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that data obtained as a result of access under the warrant will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing data obtained as a result of access under the warrant; and
(iii) any other matter the Attorney‑General considers appropriate.
Note: The eligible law enforcement officer can only apply for the warrant if the officer reasonably suspects that the access to data held in the target computer is necessary for the investigation or proceeding (see subsection 27A(4) of the Surveillance Devices Act 2004).
(2) The target computer may be any one or more of the following:
(a) a particular computer;
(b) a computer on particular premises;
(c) a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).
(3) In this section:
computer has the same meaning as in the Surveillance Devices Act 2004.
data has the same meaning as in the Surveillance Devices Act 2004.
data held in a computer has the same meaning as in the Surveillance Devices Act 2004.
eligible law enforcement officer means a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.
Division 13—Protecting victims and witnesses and preserving evidence
80 Protecting victims and witnesses and preserving evidence
(1) This section applies if:
(a) the ICC requests assistance in protecting victims or witnesses or preserving evidence; and
(b) the Attorney‑General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the assistance sought is not prohibited by Australian law.
(2) The Attorney‑General is to execute the request by authorising, in writing, the provision of the assistance.
(3) If the Attorney‑General authorises the provision of the assistance, an appropriate authority is to:
(a) give effect to the request; and
(b) prepare such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send the report to the Attorney‑General.
Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC
Subdivision A—Preliminary
81 Application of Division
This Division applies if:
(a) the ICC makes a request (a proceeds request) to the Attorney‑General for the identification, tracing, and freezing or seizure, of the proceeds of a crime within the jurisdiction of the ICC; and
(b) the Attorney‑General is satisfied that a person (in this Division called the defendant):
(i) has been, or is about to be, charged with the crime before the ICC; or
(ii) has been convicted by the ICC of the crime.
81A Authorising applications under the Proceeds of Crime Act
The Attorney‑General may authorise, in writing, an authorised officer of an enforcement agency to make such applications under the Proceeds of Crime Act as are necessary to respond to the proceeds request if the Attorney‑General is satisfied that the proceeds request:
(a) relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b) is for assistance that can be obtained from one or more production orders, monitoring orders or search warrants under the Proceeds of Crime Act.
Note: See Subdivision B for proceeds requests that involve the making of a restraining order.
Subdivision B—Restraining orders
82 Applying for and making restraining orders
(1) If the proceeds request involves the making of a restraining order, the Attorney‑General is to authorise a proceeds of crime authority to apply for a restraining order against the property concerned.
(3) If so authorised, a proceeds of crime authority may apply for such a restraining order against that property in respect of the crime.
(4) Part 2‑1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.
(5) It applies as if:
(a) references in that Part to an indictable offence were references to the crime that is the subject of the proceeds request; and
(c) references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a crime within the jurisdiction of the ICC has commenced in the ICC; and
(d) references in that Part to it being proposed to charge a person with an indictable offence were references to it being reasonably suspected that criminal proceedings are about to commence against the person in the ICC in respect of a crime within the jurisdiction of the ICC; and
(e) paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20A, 29, 29A and 44 to 45A of that Act were omitted.
83 Excluding property from restraining orders
If:
(a) a court makes a restraining order under Part 2‑1 of the Proceeds of Crime Act against property in respect of the crime within the jurisdiction of the ICC; and
(b) a person having an interest in the property applies to the court under Division 3 of Part 2‑1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;
the court must grant the application if the court is satisfied that:
(c) in a case where the applicant is not the defendant:
(i) the applicant was not, in any way, involved in the commission of the crime; and
(ii) if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the crime—the property was not proceeds of the crime; or
(d) in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.
84 When restraining order ceases to be in force
(1) If, at the end of the period of one month after the making of a restraining order in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC, the person has not been charged with the crime or a related crime within the jurisdiction of the ICC, the order ceases to be in force at the end of that period.
(2) If:
(a) a restraining order is made in reliance on a person’s conviction of a crime within the jurisdiction of the ICC or the charging of a person with such a crime; or
(b) a restraining order is made in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC and the person is, within one month after the making of the order, charged with the crime or a related crime within the jurisdiction of the ICC;
the following provisions have effect:
(c) if the charge is withdrawn and the person is not charged with a related crime within the jurisdiction of the ICC within 28 days after the day on which the charge is withdrawn, the restraining order ceases to be in force at the end of that period;
(d) if the person is acquitted of the charge and the person is not charged with a related crime within the jurisdiction of the ICC within 28 days after the day on which the acquittal occurs, the restraining order ceases to be in force at the end of that period;
(e) if some or all of the property subject to the restraining order is forfeited under Part 11, the restraining order, to the extent to which it relates to that property, ceases to be in force when that property is forfeited;
(f) the restraining order ceases to be in force if and when it is revoked.
Subdivision C—Production orders relating to crimes within the jurisdiction of the ICC
86 Applying for and making production orders
(1) An authorised officer may apply for a production order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney‑General under section 81A.
(2) Part 3‑2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.
(3) It applies as if:
(a) references in that Part to an indictable offence or to a serious offence were references to the crime that is the subject of the proceeds request; and
(b) subparagraphs 202(5)(a)(ii) and (c)(ii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.
87 Retaining produced documents
(1) An authorised officer who takes possession of a document under a production order made in respect of a crime within the jurisdiction of the ICC may retain the document pending a written direction from the Attorney‑General as to how to deal with the document.
(2) Directions from the Attorney‑General may include a direction that the document be sent to the ICC.
Subdivision D—Notices to financial institutions
88 Giving notices to financial institutions
(1) A senior police officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:
(a) determining whether an account is held by a specified person with the financial institution;
(b) determining whether a particular person is a signatory to an account;
(c) if a person holds an account with the institution, the current balance of the account;
(d) details of transactions on such an account over a specified period of up to 6 months;
(e) details of any related accounts (including names of those who hold those accounts);
(f) a transaction conducted by the financial institution on behalf of a specified person.
(2) The senior police officer must not issue the notice unless he or she reasonably believes that giving the notice is required:
(a) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or
(b) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.
(3) A senior police officer is a person covered by paragraph 213(3)(a), (b) or (c) of the Proceeds of Crime Act.
89 Contents of notices to financial institutions
The notice must:
(a) state that the officer giving the notice believes that the notice is required:
(i) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or
(ii) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division;
(as the case requires); and
(b) specify the name of the financial institution; and
(c) specify the kind of information or documents required to be provided; and
(d) specify the form and manner in which that information or those documents are to be provided; and
(e) state that the information or documents must be provided within 14 days after the day on which the notice is received; and
(f) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 92 (disclosing existence or nature of a notice); and
(g) set out the effect of section 93 (failing to comply with a notice).
90 Protection from suits etc. for those complying with notices
(1) No action, suit or proceeding lies against:
(a) a financial institution; or
(b) an officer, employee or agent of the institution acting in the course of that person’s employment or agency;
in relation to any action taken by the institution or person under a notice under section 88 or in the mistaken belief that action was required under the notice.
(2) A financial institution which, or an officer, employee or agent of a financial institution who, provides information under a notice under section 88 is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money‑laundering), not to have been in possession of that information at any time.
91 Making false statements in applications
A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, a notice under section 88.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
92 Disclosing existence or nature of notice
A person commits an offence if:
(a) the person is given a notice under section 88; and
(b) the notice states that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
93 Failing to comply with a notice
(1) A person commits an offence if:
(a) the person is given a notice under section 88; and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the person fails to comply with the notice only because the person does not provide information or a document within the period specified in the notice; and
(b) the person took all reasonable steps to provide the information or document within that period; and
(c) the person provides the information or document as soon as practicable after the end of that period.
Note 1: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.
Subdivision E—Monitoring orders relating to crimes within the jurisdiction of the ICC
95 Applying for and making monitoring orders
(1) An authorised officer may apply for a monitoring order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney‑General under section 81A.
(2) Part 3‑4 of the Proceeds of Crime Act applies to the application, and to any monitoring order made as a result.
(3) It applies as if:
(a) references in that Part to a serious offence were references to the crime that is the subject of the proceeds request; and
(b) disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 96 of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act.
96 Passing on information given under monitoring orders
If an enforcement agency is given information under a monitoring order made in relation to a crime within the jurisdiction of the ICC, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:
(a) the Attorney‑General; or
(b) an APS employee in the Attorney‑General’s Department specified by the Attorney‑General by written notice to the enforcement agency.
Subdivision F—Search warrants relating to proceeds of crime and evidential material
98 Applying for and issuing search warrants
(1) An authorised officer may apply for a search warrant under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney‑General under section 81A.
(2) Part 3‑5 of the Proceeds of Crime Act applies to the application, and to any POCA search warrant issued as a result.
(3) It applies as if:
(a) a reference in that Part to tainted property were a reference to proceeds of the crime that is the subject of the proceeds request; and
(b) a reference in that Part to evidential material were a reference to evidential material as defined in section 4 of this Act for the purposes of this Subdivision; and
(c) the words “or section 100, 101 or 102 of the International Criminal Court Act 2002” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act; and
(d) paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act were omitted.
Note: Sections 99 and 99A of this Act also apply in relation to a POCA search warrant. Sections 100 to 102 of this Act also apply in relation to property or things seized under such a warrant.
99 Contents of POCA search warrants
A POCA search warrant in relation to a crime within the jurisdiction of the ICC must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is proceeds of the crime that are not of a kind specified in the warrant; or
(ii) is evidential material relating to the crime that is not of a kind specified in the warrant; or
(iii) is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or
(iv) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(v) will afford evidence as to the commission of an offence against an Australian law; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.
Note: Subject to paragraph 98(3)(d), the POCA search warrant must also state the matters set out in section 227 of the Proceeds of Crime Act.
99A Seizure of certain property or things found in the course of search
A POCA search warrant in relation to a crime within the jurisdiction of the ICC authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is proceeds of the crime that are not of a kind specified in the warrant; or
(ii) is evidential material relating to the crime that is not of a kind specified in the warrant; or
(iii) is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or
(iv) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(v) will afford evidence as to the commission of an offence against an Australian law; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.
Note: Subject to paragraph 98(3)(d), the POCA search warrant also authorises the things set out in section 228 of the Proceeds of Crime Act.
100 Return of seized property to third parties
(1) A person who claims an interest in property that has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC may apply to a court for an order that the property be returned to the person.
(2) The court must be a court of the State or Territory in which the POCA search warrant was issued that has proceeds jurisdiction.
(3) The court must order the responsible enforcement agency head to return the property to the applicant if the court is satisfied that:
(a) the applicant is entitled to possession of the property; and
(b) the property is not proceeds of the relevant crime within the jurisdiction of the ICC; and
(c) the person who is believed or alleged to have committed the relevant crime within the jurisdiction of the ICC has no interest in the property.
(4) If the court makes such an order, the responsible enforcement agency head must arrange for the property to be returned to the applicant.
(5) This section does not apply to property that has been seized under a POCA search warrant because:
(a) it is evidential material; or
(b) it is property of a kind referred to in subparagraph 99A(a)(iv) or (v).
101 Dealing with certain seized property
(1) Property must be dealt with in accordance with this section if:
(a) it has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and
(b) it is not:
(i) evidential material; or
(ii) property of a kind referred to in subparagraph 99A(a)(iv) or (v).
General rule—property to be returned after 30 days
(2) If, at the end of the period of 30 days after the day on which the property was seized:
(a) a forfeiture order in relation to the property has not been registered in a court under Part 11; and
(b) a restraining order has not been made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC;
the responsible enforcement agency head must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.
Effect of restraining orders being registered or obtained
(3) If, before the end of that period, a restraining order is made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head:
(a) if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
(b) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.
(4) If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.
Retaining property despite restraining orders
(5) If, at a time when the property is in the possession of the responsible enforcement agency head, a restraining order has been made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the responsible enforcement agency head retain possession of the property.
(6) If the court is satisfied that the responsible enforcement agency head requires the property to be retained to give effect to the proceeds request, the court may make an order that the responsible enforcement agency head may retain the property for so long as the property is so required.
Effect of forfeiture orders by the ICC being registered or obtained
(7) If, while the property is in the possession of the responsible enforcement agency head, a forfeiture order in respect of the property is registered in a court under Part 11, the responsible enforcement agency head must deal with the property as required by the forfeiture order.
102 Dealing with evidential material and certain property or things seized under POCA search warrants
(1) This section applies if:
(a) property or a thing (the seized item) is seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and
(b) the seized item is:
(i) evidential material; or
(ii) property or a thing of a kind referred to in subparagraph 99A(a)(iv); and
(c) the seized item is seized by a person (the seizing officer) who is:
(i) an authorised officer; or
(ii) a person assisting in relation to the warrant.
(2) The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney‑General as to how to deal with the seized item.
(3) Without limiting the directions that may be given under subsection (2), the Attorney‑General may direct the seizing officer to send the seized item to the ICC.
Division 15—Other types of assistance
103 Other types of assistance
(1) This section applies if:
(a) the ICC requests any type of assistance referred to in paragraph 7(1)(b); and
(b) the Attorney‑General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC.
(2) The Attorney‑General must refuse the request if the request is prohibited by Australian law and:
(a) the ICC does not modify the request as contemplated by paragraph 3 of article 93 of the Statute and section 53; or
(b) the assistance requested cannot be provided in a way referred to in paragraph 5 of article 93 of the Statute and subsection 11(2) or can only be provided subject to conditions that the ICC does not accept.
(3) If subsection (2) does not apply, the Attorney‑General is to execute the request by authorising, in writing, the provision of the assistance.
(4) If the Attorney‑General authorises the provision of the assistance, an appropriate authority is to:
(a) take such action as the authority thinks appropriate in the particular case; and
(b) prepare a written report with respect to the action taken; and
(c) send the report to the Attorney‑General.
Division 16—Miscellaneous
104 Effect of authorisation to execute request
At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney‑General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney‑General has previously authorised the execution of the request.
105 Request may relate to assistance sought by defence
To avoid doubt, if the ICC makes a request to assist a defendant in the preparation of his or her defence, the request must be dealt with in the same way as a request for assistance of a similar type made by the ICC to assist the Prosecutor would be dealt with.
106 Prosecutor may execute request
(1) The Prosecutor may execute a request for cooperation that does not involve the taking of any compulsory measures in Australia in the circumstances specified in paragraph 4 of article 99 of the Statute.
(2) If the Attorney‑General identifies problems with the execution of a request to which paragraph 4(b) of article 99 of the Statute relates, the Attorney‑General must, without delay, consult with the ICC in order to resolve the matter.
(3) The provisions of this Act and the Statute, allowing a person heard or examined by the ICC under article 72 of the Statute to invoke restrictions designed to prevent disclosure of confidential information connected with national security, apply to the execution of requests for assistance under article 99 of the Statute.
Part 5—Investigations or sittings of the ICC in Australia
107 Prosecutor may conduct investigations in Australia
The Prosecutor may conduct investigations in Australia:
(a) in accordance with Part 9 of the Statute; or
(b) as authorised by the Pre‑Trial Chamber under paragraph 3(d) of article 57 of the Statute.
108 ICC sittings in Australia
(1) The ICC may sit in Australia for the purpose of performing its functions under the Statute or the Rules.
(2) Without limiting subsection (1), the ICC may sit in Australia for the purpose of:
(a) taking evidence; or
(b) conducting or continuing a proceeding; or
(c) giving judgment in a proceeding; or
(d) reviewing a sentence.
109 ICC’s powers while sitting in Australia
While the ICC is sitting in Australia, it may exercise its functions and powers as provided under the Statute and the Rules.
110 ICC may require witnesses at sittings in Australia to give undertakings as to truthfulness of their evidence
The ICC may, at any sitting of the ICC in Australia, require, in accordance with the Rules, a witness to give an undertaking as to the truthfulness of the evidence to be given by the witness.
Part 6—Search, seizure and powers of arrest
Division 1—Search warrants
111 When search warrants can be issued
(1) A magistrate may issue a warrant to search premises if:
(a) an application has been made to the magistrate under subsection 27(1) or 78(1); and
(b) the magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or within the applicable period referred to in subsection (3) of this section will be, any evidential material at the premises.
(2) A magistrate may issue a warrant authorising an ordinary search or a frisk search of a person if:
(a) an application has been made to the magistrate under subsection 27(2) or 78(2); and
(b) the magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that the person has, or within the applicable period referred to in subsection (3) of this section will have, any evidential material in his or her possession.
(3) For the purposes of subsections (1) and (2), the applicable period is:
(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.
(4) If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises, the person must state particulars of those applications and their outcome in the information.
(6) A magistrate in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(7) A magistrate in a State may:
(a) issue a warrant in relation to premises or a person in that State; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or in the Jervis Bay Territory if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia if he or she is satisfied that it is not possible to predict where the person may be.
112 Content of warrants
(1) If a magistrate issues a search warrant, the magistrate is to state in the warrant:
(a) the purpose for which it is issued, including the crime within the jurisdiction of the ICC to which the application for the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and
(e) the period for which the warrant remains in force, which must not be more than:
(i) if the warrant is issued on an application by telephone, telex, fax or other electronic means as provided by section 116—48 hours; or
(ii) otherwise—7 days; and
(f) whether the warrant may be executed at any time or only during particular hours.
(2) Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.
(3) The magistrate is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an officer assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(4) The magistrate is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in or on a recently used conveyance, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) a thing relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(b) the kind of search of a person that the warrant authorises.
113 The things authorised by a search warrant in relation to premises
(1) A warrant in force in relation to premises authorises the executing officer or an officer assisting:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(e) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or an officer assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
114 The things authorised by a search warrant in relation to a person
(1) A warrant in force in relation to a person authorises the executing officer or an officer assisting:
(a) to:
(i) search the person as specified in the warrant; and
(ii) search things found in the possession of the person; and
(iii) search any recently used conveyance;
for things of the kind specified in the warrant; and
(b) to:
(i) seize things of that kind; and
(ii) record fingerprints from things; and
(iii) take forensic samples from things;
found in the course of the search; and
(c) to seize other things found in the possession of the person or in or on the conveyance in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) things relevant to an indictable offence against an Australian law;
if the executing officer or a police officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing the crime within the jurisdiction of the ICC or an indictable offence against an Australian law; and
(d) to seize other things found in the course of the search that the executing officer or a police officer assisting believes on reasonable grounds to be seizable items.
(2) If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.
(3) If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different from that so authorised must not be done under the warrant.
115 Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
116 Warrants may be issued by telephone etc.
(1) A police officer may apply to a magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate requires, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant as would be issued under section 111.
117 Formalities relating to warrants issued by telephone etc.
(1) If the magistrate decides to issue the warrant under section 116, the magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(2) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
(3) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or send to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection 116(3) was not sworn—that information duly sworn.
(4) The magistrate is to attach to the documents provided under subsection (3) the form of warrant completed by the magistrate.
(5) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under section 116 was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
Division 2—Provisions relating to execution of search warrants
118 Availability of assistance and use of force in executing a warrant
In executing a search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is a police officer assisting in executing the warrant, may use such force against persons and things; and
(c) a person who is not a police officer and has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
119 Copy of warrant to be shown to occupier etc.
(1) If a search warrant in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(2) If a search warrant in relation to a person is being executed, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(3) If a person is searched under a search warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched.
(5) The copy of the warrant referred to in subsections (1), (2) and (3) need not include the signature of the magistrate who issued it or the seal of the relevant court.
120 Specific powers available to officers executing warrants
(1) In executing a search warrant in relation to premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to execution of the warrant; or
(b) if the occupier of the warrant premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) In executing a search warrant in relation to premises, the executing officer and the police officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the warrant premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) If:
(a) the execution of a search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
121 Use of equipment to examine or process things
(1) The executing officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether the things may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the warrant premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether the things may be seized under the warrant.
(3) If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or an officer assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it may be seized under the warrant if the executing officer or police officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or thing.
122 Use of electronic equipment at premises
(1) The executing officer or an officer assisting may operate electronic equipment at the warrant premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(2) If the executing officer or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in a documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device:
(i) that is brought to the premises; or
(ii) that is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3) Equipment may be seized under paragraph (2)(a) only if:
(a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b) possession by the occupier of the equipment could constitute an offence against an Australian law.
(4) If the executing officer or an officer assisting believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the warrant premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(5) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(6) The equipment may be secured:
(a) for up to 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(7) If the executing officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period.
(8) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(9) Division 1 applies, with such modifications as are necessary, to issuing an extension.
123 Compensation for damage to electronic equipment
(1) This section applies if:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 121 or 122; or
(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because of:
(c) insufficient care being exercised in selecting the person who was to operate the equipment; or
(d) insufficient care being exercised by the person operating the equipment.
(2) The Commonwealth must pay to the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings against the Commonwealth in the Federal Court for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the warrant premises or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.
124 Copies of seized things to be provided
(1) Subject to subsection (2), if an executing officer or officer assisting seizes, under a warrant in relation to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the executing officer or officer assisting must, if requested to do so by the occupier of the warrant premises or another person who apparently represents the occupier and is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing was seized under paragraph 122(2)(b) or (c); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence against an Australian law.
125 Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
126 Receipts for things seized under warrant
(1) If a thing is seized under a warrant or moved under subsection 121(2), the executing officer or an officer assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or removed, they may be covered in the one receipt.
Division 3—Stopping and searching conveyances
127 Searches without warrant in emergency situations
(1) This section applies if a police officer suspects, on reasonable grounds, that:
(a) evidential material is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the material from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2) The police officer may:
(a) stop and detain the conveyance; and
(b) search the conveyance, and any container in or on the conveyance, for the material; and
(c) seize the material if he or she finds it there.
(3) If, in the course of searching for the material, the police officer finds other evidential material or a thing relevant to an offence against an Australian law, the police officer may seize that material or thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and
(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.
(4) The police officer must exercise his or her powers subject to section 128.
128 How a police officer exercises a power to search without warrant
When a police officer exercises a power under section 127 in relation to a conveyance, he or she:
(a) may use such assistance as is necessary; and
(b) must search the conveyance in a public place or in some other place to which members of the public have ready access; and
(c) must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and
(d) may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:
(i) the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or
(ii) it is not possible to give that person such an opportunity.
Division 4—Arrest and related matters
129 Power to enter premises to arrest person
(1) Subject to subsection (2), if:
(a) a police officer has, under this Act or pursuant to a warrant issued under this Act, power to arrest a person; and
(b) the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidential material.
(3) In subsection (2):
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house, or club, in which people ordinarily retire for the night.
130 Use of force in making arrest
(1) A person must not, in the course of arresting another person under this Act or pursuant to a warrant issued under this Act, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2) Without limiting the operation of subsection (1), a police officer must not, in the course of arresting a person under this Act or pursuant to a warrant issued under this Act:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or
(b) if the person is attempting to escape arrest by fleeing—do such a thing unless:
(i) the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and
(ii) the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.
131 Persons to be informed of grounds of arrest
(1) A person who arrests another person under this Act or pursuant to a warrant issued under this Act must inform the other person, at the time of the arrest, of the crime in respect of which, or, if the other person is arrested under section 182, the reason for which, the other person is being arrested.
(2) It is sufficient if the other person is informed of the substance of the crime or reason, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the other person if:
(a) the other person should, in the circumstances, know the substance of the crime in respect of which, or the reason for which, he or she is being arrested; or
(b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the crime in respect of which, or the reason for which, he or she is being arrested.
132 Power to conduct a frisk search of an arrested person
A police officer who arrests a person under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at or soon after the time of arrest; and
(b) seize any seizable items found as a result of the search.
133 Power to conduct an ordinary search of an arrested person
A police officer who arrests a person under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that the person is carrying:
(a) evidential material relating to the crime to which the person’s custody relates; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
134 Power to conduct search of arrested person’s premises
A police officer who arrests a person at premises under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may seize things in plain view at those premises that the police officer believes on reasonable grounds to be:
(a) evidential material relating to the crime to which the person’s custody relates; or
(b) seizable items.
135 Power to conduct an ordinary search or strip search
(1) If a person who has been arrested under this Act or pursuant to a warrant issued under this Act is brought to a police station, a police officer may:
(a) if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(2) A strip search may be conducted if:
(a) a police officer suspects on reasonable grounds that:
(i) the person has in his or her possession evidential material relating to the crime to which the person’s custody relates; or
(ii) the person has in his or her possession a seizable item; or
(iii) a visual inspection of the person’s body will provide evidence of the person’s involvement in that crime; and
(b) the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that thing or to discover that evidence; and
(c) a police officer of the rank of superintendent or higher has approved the conduct of the search.
(3) Subject to section 136, a strip search may also be conducted if the person consents in writing.
(4) Subject to section 136, a strip search may be conducted in the presence of a medical practitioner, who may assist in the search.
(5) The approval may be obtained by telephone, telex, fax or other electronic means.
(6) A police officer who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
(8) Any item of a kind referred to in subparagraph (2)(a)(i) or (ii) that is found during a strip search may be seized.
136 Rules for conduct of strip search
(1) A strip search:
(a) must be conducted in a private area; and
(b) must be conducted by a police officer who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10 years of age; and
(f) if the person being searched is at least 10 but under 18 years of age, or is incapable of managing his or her affairs:
(i) may only be conducted if a court orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person’s body cavities; and
(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the crime to which the person’s custody relates; and
(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to establish the person’s involvement in the crime to which the person’s custody relates.
(2) In deciding whether to make an order referred to in paragraph (1)(f), the court must have regard to:
(a) the serious nature of the crime to which the person’s custody relates; and
(b) the age or any disability of the person; and
(c) such other matters as the court thinks fit.
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(4) Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(5) If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.
Division 5—General
137 Conduct of ordinary searches and frisk searches
(1) An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
(2) An officer assisting who is not a police officer must not take part in an ordinary search or a frisk search of a person under this Part.
138 Announcement before entry
(1) A police officer must, before any person enters premises under a warrant or to arrest a person:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) A police officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including the police officer); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
139 Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 116 the name of a magistrate unless that magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that:
(i) the person knows has not been approved by a magistrate under that section; or
(ii) the person knows to depart in a material particular from the terms authorised by a magistrate under that section; or
(d) send to a magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
140 Retention of things seized
(1) If a police officer seizes a thing under this Part, he or she must deliver it into the custody and control of the Commissioner of Police of the Australian Federal Police.
(2) Subject to subsection (5), the Commissioner must:
(a) inform the Attorney‑General that the thing has been so delivered; and
(b) retain the thing pending the Attorney‑General’s direction under subsection (3) about how to deal with the thing; and
(c) comply with any such direction that the Attorney‑General gives.
(3) The Attorney‑General may, by written notice, give the Commissioner a direction about how to deal with the thing.
(4) Without limiting the directions that may be given, a direction may require the Commissioner to send the thing to the ICC.
(5) The Attorney‑General must direct the Commissioner to return the thing if:
(a) the reason for its seizure no longer exists; or
(b) it is decided that the thing is not to be used in evidence by the ICC or in respect of criminal proceedings in Australia;
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
141 Magistrate may permit a thing to be retained
(1) If a thing is seized under section 140 and:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a magistrate under this section;
proceedings in respect of which the thing may afford evidence have not commenced, the Commissioner of Police of the Australian Federal Police may apply to a magistrate for an order that he or she may retain the thing for a further period.
(2) If the magistrate is satisfied that it is necessary for the Commissioner to continue to retain the thing:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution;
the magistrate may order that the Commissioner may retain the thing for a period specified in the order.
(3) Before making the application, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the Commissioner believes has such an interest that the application has been made.
Part 7—Information provided in confidence by third party
142 Disclosure of information provided in confidence by third party
(1) If the ICC requests the giving of information or documents that were provided to Australia on a confidential basis by a foreign country or by an intergovernmental or international organisation (in either case referred to as the originator), the Attorney‑General must seek the consent of the originator before giving the information or documents to the ICC.
(2) If the originator is a party to the Statute that consents to disclosure of the information or documents, the Attorney‑General must, subject to Part 8, give the information or documents to the ICC.
(3) If the originator is a party to the Statute that undertakes to resolve the issue of disclosure of the information or documents with the ICC under article 73 of the Statute, the Attorney‑General must inform the ICC of the undertaking.
(4) If the originator is not a party to the Statute and refuses to consent to disclosure of the information or documents, the Attorney‑General must inform the ICC that he or she is unable to give the information or documents because of an existing obligation of confidentiality to the originator.
(5) If the originator is not a party to the Statute and consents to disclosure of the information or documents, the Attorney‑General must, subject to Part 8, give the information or documents to the ICC.
143 Request for Australia’s consent to disclosure
If a request is received from a foreign country for Australia’s consent to the disclosure to the ICC of information or documents that had been disclosed by Australia to the country on a confidential basis, the Attorney‑General must either:
(a) consent to the disclosure; or
(b) undertake to deal with the matter in accordance with Part 8.
Part 8—Protection of Australia’s national security interests
144 How national security issues are to be dealt with
If the Attorney‑General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.
145 Request for cooperation involving national security
(1) If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney‑General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.
(2) If, after the procedure specified in sections 148 and 149 is followed, the request for cooperation is not able to be resolved, the Attorney‑General may refuse the request or decline to authorise the disclosure.
146 Request to disclose information or documents involving national security
(1) This section applies if a person who has been requested to disclose information or documents to the ICC:
(a) refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or
(b) refers the matter to the Attorney‑General on that ground.
(2) The Attorney‑General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.
(3) If the Attorney‑General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.
(4) If, after the procedure specified in sections 148 and 149 is followed, the request for disclosure is not able to be resolved, the Attorney‑General may refuse the request or decline to authorise the disclosure.
147 Other situations involving national security
(1) If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney‑General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).
(2) Without limiting subsection (1), if:
(a) the Attorney‑General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and
(b) after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;
the Attorney‑General may decline to authorise the disclosure.
148 Consultation with ICC required
The Attorney‑General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.
149 Procedure where no resolution
(1) If, after the consultation, the Attorney‑General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney‑General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.
(2) If:
(a) the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and
(b) the issue of disclosure arises in the circumstances specified in section 145 or 146; and
(c) the Attorney‑General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and
(d) the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;
the Attorney‑General must consult with the ICC.
Part 9—Transportation of persons in custody through Australia
150 Transportation of persons in custody through Australia
(1) This Part applies to a person (the transportee) who:
(a) is being surrendered to the ICC by a foreign country under article 89 of the Statute; or
(b) has been sentenced to imprisonment by the ICC and is being transferred to or from the ICC, or between foreign countries, in connection with the sentence.
(2) Subject to this section, the Attorney‑General must authorise the transportation of the transportee through Australia in the custody of a person specified by the Attorney‑General if the ICC has, in accordance with section 8, made a request for the transportation that contains:
(a) a description of the transportee; and
(b) a brief statement of the facts of the case and their legal characterisation; and
(c) the warrant for the arrest and surrender of the transportee.
(3) The Attorney‑General must not authorise the transportation through Australia of a person referred to in paragraph (1)(a) if the Attorney‑General reasonably believes that the transportation through Australia would impede or delay the surrender of the person to the ICC.
(4) No authorisation is required for the transportation of the transportee through Australia by air if no landing of the aircraft is scheduled to take place in Australia.
(5) However, if an unscheduled landing of an aircraft carrying the transportee takes place in Australia, the following provisions have effect:
(a) a police officer may detain the transportee in custody for a period of 96 hours from the time of the landing;
(b) the Attorney‑General must seek from the ICC a request for the transportation of the transportee through Australia;
(c) if the Attorney‑General receives such a request within that period—the transportation of the transportee may continue and the transportee is to continue to be detained in custody during the transportation;
(d) if the Attorney‑General does not receive such a request within that period—the transportee must be released from custody.
(6) Despite any authorisation by the Attorney‑General of the transportation through Australia of the transportee, that transportation is subject to the requirements of section 42 of the Migration Act 1958.
Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC
151 Assistance with enforcement of orders for reparation to victims
(1) This section applies if:
(a) the ICC:
(i) makes an order under article 75 of the Statute requiring reparation; and
(ii) requests that the order be enforced as if article 109 of the Statute were applicable; and
(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.
152 Assistance with enforcement of orders imposing fines
(1) This section applies if:
(a) the ICC:
(i) orders payment of a fine under paragraph 2(a) of article 77 of the Statute; and
(ii) requests that the order be enforced in accordance with article 109 of the Statute; and
(b) neither the conviction in respect of which the order was made nor the order for payment of the fine is subject to appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.
153 Registration of order
(1) If the DPP applies to a court for registration of an order in accordance with an authorisation under section 151 or 152, the court must register the order and must direct the DPP to publish notice of the registration in the manner and within the period that the court considers appropriate.
(2) An order is to be registered in a court in the same way as the court registers an order made by another Australian court.
(3) Subject to subsection 154(3), if a copy of an authenticated copy of an order is faxed, emailed or sent by other electronic means, it is taken for the purposes of subsection (2) of this section to be the same as the authenticated copy.
154 Effect of order
(1) An order referred to in section 151 that is registered in a court has effect, and may be enforced, as if it were an order for the payment of money made by the court at the time of the registration.
(2) An order referred to in section 152 that is registered in a court has effect, and may be enforced, as if it were an order imposing a fine made by the court at the time of the registration.
(3) A registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.
Part 11—Forfeiture of proceeds of international crimes
155 Requests for enforcement of forfeiture orders
(1) This section applies if:
(a) the ICC requests the Attorney‑General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
(b) the Attorney‑General is satisfied:
(i) that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and
(ii) the conviction and the order are not subject to appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order.
156 Registration of order
(1A) An application for the registration of an order in accordance with an authorisation under subsection 155(2) must be to a court with proceeds jurisdiction.
(1) If a proceeds of crime authority so applies to a court with proceeds jurisdiction, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) The proceeds of crime authority must give notice of the application:
(a) to specified persons who the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs.
(3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.
(4) An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.
(5) A copy sent by fax, email or other electronic means of an authenticated copy of an order is taken for the purposes of subsection (4) to be the same as the authenticated copy.
(6) However, a registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.
157 Effect of order
(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and
(b) subparagraph 68(1)(b)(ii) of that Act were omitted.
(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney‑General or of a person authorised in writing by the Attorney‑General for the purposes of this subsection.
(4) In giving a direction under subsection (3), the Attorney‑General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.
(5) Sections 69 and 70, Divisions 5 to 7 of Part 2‑2, Part 4‑2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.
158 Effect on third parties of registration of forfeiture order
Applications by third parties
(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
(a) claims an interest in the property; and
(b) was not convicted of a crime within the jurisdiction of the ICC to which the order relates;
may apply to the court for an order under subsection (2).
Orders by the court
(2) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a crime within the jurisdiction of the ICC to which the order relates; and
(b) if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;
the court must make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).
Certain people need leave to apply
(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.
(4) The court may grant leave if it is satisfied that there are special grounds for doing so.
(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).
Period for applying
(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.
(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.
Procedural matters
(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.
(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney‑General may intervene in such proceedings.
159 Forfeiture may be treated as pecuniary penalty order
(1) This section applies if the Attorney‑General is unable to give effect to a forfeiture order.
(2) The Attorney‑General must take measures to recover:
(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or
(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney‑General’s opinion, is the value of that property.
(3) The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.
(4) Division 4 of Part 2‑4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:
(a) references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and
(b) the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and
(c) subsections 140(3) and (5) of that Act were omitted.
Part 12—Enforcement in Australia of sentences imposed by ICC
Division 1—Preliminary
160 Australia may agree to act as State of enforcement
(1) The Attorney‑General may notify the ICC that Australia is willing to allow persons who are ICC prisoners to serve their sentences in Australia subject to such conditions (the enforcement conditions) as Australia imposes and are specified in the instrument of notification.
(2) The enforcement conditions that may be imposed include, but are not limited to:
(a) a condition that, unless the Attorney‑General determines that it is not necessary in a particular case, the ICC prisoner or his or her representative has consented in writing to the sentence being served in Australia; and
(b) a condition that the appropriate Ministerial consent has been given to the sentence being served in Australia; and
(c) a condition that any appeal or application for revision in respect of the sentence or in respect of the conviction on which it is based has been heard and determined or the period for bringing such an appeal or application has expired; and
(d) a condition that:
(i) on the day of receipt by Australia of the relevant designation under article 103 of the Statute, at least 6 months of the ICC prisoner’s sentence remains to be served; or
(ii) if a shorter period remains to be served on that day, the Attorney‑General has determined that, in the circumstances, transfer of the ICC prisoner to Australia for a shorter period is acceptable.
(3) The Attorney‑General may, at any time, notify the ICC that Australia withdraws a condition specified in the instrument of notification referred to in subsection (1).
161 Withdrawal of agreement to act as State of enforcement
(1) If the Attorney‑General notifies the ICC under section 160, the Attorney‑General may, at any time, withdraw the notification by notifying the ICC that Australia is no longer willing to allow ICC prisoners to serve their sentences in Australia.
(2) Any notification given under subsection (1) does not affect the enforcement of sentences for which the Attorney‑General had, before the notification was given, accepted the designation given to Australia by the ICC under section 164.
162 Designation of Australia as place for service of sentence
(1) If:
(a) the Attorney‑General has given a notification under section 160 and has not withdrawn the notification under section 161; and
(b) the ICC imposes a sentence of imprisonment on a person convicted of a crime within the jurisdiction of the ICC; and
(c) the ICC designates Australia, under article 103 of the Statute, as the country in which the sentence is to be served;
the Attorney‑General is to consider whether to accept the designation.
(2) Before accepting the designation, the Attorney‑General may request the ICC to provide the Attorney‑General with any relevant information that will enable the Attorney‑General to assess whether the designation should be accepted.
163 Governmental consent to acceptance of designation
(1) Before accepting the designation, the Attorney‑General is to determine the State in which it would be most appropriate for the ICC prisoner to serve the sentence of imprisonment imposed by the ICC and is to seek the consent of the State Minister concerned.
(2) The Attorney‑General is to provide the State Minister with particulars of any information that the ICC has given to the Attorney‑General.
(3) As soon as possible after receiving the particulars, the State Minister is to inform the Attorney‑General in writing whether the State Minister consents to the sentence being served in the State.
(4) If the State Minister refuses to consent to the sentence being served in the State, the Attorney‑General may seek the consent of another State Minister to the sentence being served in the State concerned.
(5) If a State Minister consents to the sentence being served in the State, that Minister is to notify the Attorney‑General of:
(a) the prison, or hospital or other place, in which the ICC prisoner is to serve the sentence in accordance with this Part in the State; and
(b) any other matters that the State Minister considers relevant to the service of the sentence in the State.
Note: An ICC prisoner may be transferred from the prison, hospital or other place in the State in which he or she begins to serve a sentence of imprisonment to another prison, hospital or other place in the State or to a prison, hospital or other place in another State (see paragraphs 172(5)(c), (d) and (h)).
164 Acceptance of designation
(1) The Attorney‑General may accept the designation if:
(a) the Attorney‑General is satisfied that the ICC has agreed to the enforcement conditions; and
(b) in the case of a prisoner who is not an Australian citizen—the Minister administering the Migration Act 1958 has consented to the sentence of imprisonment being served by the ICC prisoner in Australia; and
(c) a State Minister has consented to the sentence of imprisonment being served by the ICC prisoner in the State.
(2) When the Attorney‑General notifies the ICC of the acceptance of the designation, the Attorney‑General is also to notify the ICC whether the written consent of the ICC prisoner or his or her representative to the sentence being served in Australia is required and, if such a consent is required, ask the ICC to inform the Attorney‑General when it has been obtained.
Division 2—Transfer to Australia of ICC prisoners
165 Issue of warrant for transfer to Australia
The Attorney‑General may issue a warrant, by writing in the statutory form, for the transfer of an ICC prisoner to Australia if:
(a) the ICC’s agreement to the enforcement conditions; and
(b) the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney‑General considers such consent is necessary); and
(c) the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.
166 Warrants for transfer to Australia
(1) A warrant for the transfer of an ICC prisoner to Australia authorises the transfer of the prisoner to Australia to serve the sentence of imprisonment imposed by the ICC in accordance with the enforcement conditions.
(2) A warrant must:
(a) specify the name and date of birth of the prisoner to be transferred; and
(b) specify the country from which the prisoner is to be transferred; and
(c) state that:
(i) the ICC’s agreement to the enforcement conditions; and
(ii) the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney‑General considers such consent is necessary); and
(iii) the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.
(3) The warrant is:
(a) to authorise an escort officer to collect the prisoner from a place (whether in Australia or a foreign country) specified in the warrant; and
(b) if the place is in a foreign country—to authorise:
(i) the escort officer to transport the prisoner in custody to Australia for surrender to a person appointed by the Attorney‑General to receive the prisoner; and
(ii) if appropriate, the appointed person to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and
(c) if the place is in Australia—to authorise the escort officer to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and
(d) if the prisoner is to be escorted to a prison—to require the superintendent of the prison to take the prisoner into custody to be dealt with in accordance with this Part; and
(e) if the prisoner is to be escorted to a hospital or other place—to authorise his or her detention in the hospital or place to be dealt with in accordance with this Part.
Note: An ICC prisoner may be transferred from the prison, hospital or other place in the State in which he or she begins to serve a sentence of imprisonment to another prison, hospital or other place in the State or to a prison, hospital or other place in another State (see paragraphs 172(5)(e), (d) and (h)).
(4) The Attorney‑General may give any direction or approval that is necessary to ensure that the warrant is executed in accordance with its terms.
167 Cancellation of warrant
(1) The Attorney‑General may cancel a warrant for the transfer of an ICC prisoner to Australia at any time before the prisoner leaves the foreign country in which he or she is being held in custody.
(2) Without limiting the grounds on which the Attorney‑General may cancel a warrant for the transfer of an ICC prisoner to Australia, it must be cancelled if:
(a) the ICC cancels the designation of Australia or decides not to accept an enforcement condition; or
(b) the Attorney‑General, the Minister administering the Migration Act 1958 or a State Minister withdraws consent; or
(c) where the consent of the prisoner or his or her representative to the sentence being served in Australia was required by the Attorney‑General—the prisoner or representative withdraws consent.
Division 3—Enforcement of sentences
168 Sentence enforcement in Australia
The Attorney‑General may determine that a sentence of imprisonment imposed on an ICC prisoner by the ICC be enforced on transfer of the prisoner to Australia under this Part.
169 Duration and nature of enforced sentence
(1) The sentence of imprisonment to be enforced must not be harsher, in legal nature, than the sentence of imprisonment imposed by the ICC.
(2) Without limiting subsection (1), the sentence to be enforced under this Part:
(a) must not be for a longer duration than the sentence imposed by the ICC; and
(b) must not be of a kind that involves a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the ICC.
170 Directions about enforcement of sentence
(1) The Attorney‑General may, subject to section 169, give such directions as the Attorney‑General considers appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Part.
(2) However, a direction reducing the sentence may only be given in accordance with a decision of the ICC under article 110 of the Statute.
(3) Without limiting subsection (1), directions may be given, in respect of a mentally impaired prisoner, as to any review to be undertaken of his or her mental condition and treatment to be provided to him or her following transfer.
(4) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney‑General may inform himself or herself as he or she thinks fit and, in particular, may have regard to the following:
(a) any relevant decisions of the ICC;
(b) any views expressed by any State Minister concerned with the proposed transfer;
(c) any views expressed by prison authorities of any State;
(d) the legal nature of the sentence of imprisonment that might have been imposed if the acts or omissions constituting the crime within the jurisdiction of the ICC had been committed in Australia;
(e) any limitations or requirements arising under the Statute in relation to the way in which a sentence of imprisonment imposed by the ICC may be enforced in Australia.
171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney‑General
(1) On transfer of an ICC prisoner to Australia under this Part, no appeal or review lies in Australia against the sentence of imprisonment imposed by the ICC.
(2) No appeal or review lies against a decision of the Attorney‑General about the enforcement in Australia under this Part of a sentence of imprisonment imposed by the ICC.
172 ICC prisoner transferred to Australia to be regarded as a federal prisoner
(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:
(a) the sentence is taken to be a federal sentence of imprisonment; and
(b) the prisoner is taken to be a federal prisoner.
(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.
(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.
(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.
(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:
(a) conditions of imprisonment and treatment of prisoners;
(b) classification and separation of prisoners;
(c) removal of prisoners from one prison to another;
(d) removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;
(e) treatment of mentally impaired prisoners;
(f) subject to subsection (6), eligibility for participation in prison programs;
(g) temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);
(h) transfer of prisoners between States.
(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre‑release permit scheme (however called) are not applicable to an ICC prisoner who is transferred to Australia under this Part.
173 Other matters relating to ICC prisoners
(1) An ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person.
(2) A Judge of the ICC or a member of the staff of the ICC may visit an ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person except a representative of the prisoner.
(3) The Attorney‑General must advise the ICC if an ICC prisoner is transferred from a prison to a hospital or other place, or from a hospital or other place to another hospital or other place.
174 Pardon, amnesty or commutation of sentences of imprisonment imposed on ICC prisoners transferred to Australia
(1) Subject to the prior agreement of the ICC, during the period in which a sentence of imprisonment is served in Australia by an ICC prisoner transferred to Australia under this Part, the prisoner may be pardoned or granted any amnesty or commutation of sentence of imprisonment that could be granted under Australian law if the sentence of imprisonment had been imposed for an offence against an Australian law.
(2) The Attorney‑General is to direct, by written notice in the statutory form, that an ICC prisoner must not be detained in custody or otherwise be subjected to detention or supervision in Australia under a sentence of imprisonment imposed by the ICC and enforced under this Part if, during the period in which the sentence is served in Australia:
(a) the ICC notifies the Attorney‑General that the ICC prisoner may be pardoned or granted amnesty or commutation of sentence of imprisonment under an Australian law and the ICC prisoner is so pardoned or granted such amnesty or commutation of sentence of imprisonment; or
(b) the ICC notifies the Attorney‑General that the ICC prisoner’s conviction has been quashed or otherwise nullified or that the prisoner has been pardoned or granted commutation of sentence of imprisonment by the ICC.
175 ICC prisoner may apply to be transferred from Australia to a foreign country
An ICC prisoner serving a sentence in Australia may, at any time, apply to the ICC to be transferred from Australia to complete the service of the sentence in a foreign country.
176 How ICC prisoner is to be transferred
(1) This section applies if an ICC prisoner is to be transferred from Australia to a foreign country to complete the service of his or her sentence.
(2) The Attorney‑General may issue a warrant, by writing in the statutory form, for the transfer of the prisoner.
(3) The warrant authorises the transfer of the prisoner from Australia to the foreign country to complete the service of his or her sentence.
(4) The warrant must:
(a) specify the name and date of birth of the prisoner; and
(b) state that the prisoner is to be transferred from Australia to the foreign country to complete the service of his or her sentence; and
(c) authorise an escort officer to collect the prisoner from the prison in which he or she is held in custody, or from the hospital or other place where he or she is detained, and transport the prisoner in custody to the foreign country; and
(d) require the superintendent of the prison, or the person in charge of the hospital or other place, to release the prisoner into the custody of the escort officer.
177 Special rules in certain cases
(1) An ICC prisoner serving a sentence in Australia may:
(a) be extradited to a foreign country in accordance with the Extradition Act 1988 either:
(i) after the completion of, or release from, the sentence; or
(ii) during the sentence, but only for a temporary period; or
(b) be required to remain in Australia in order to serve a sentence that he or she is liable to serve under Australian law.
(2) Despite subsection (1):
(a) a person to whom paragraph (1)(a) applies may not, without the prior agreement of the ICC, be extradited to a foreign country; and
(b) a person to whom paragraph (1)(b) applies may not, without the prior agreement of the ICC, be prosecuted or punished in Australia;
for an offence constituted by an act or omission that occurred before the making of the relevant designation referred to in paragraph 162(1)(c).
(3) Subsection (2) does not apply to a person who:
(a) remains voluntarily in Australia for more than 30 days after the date of completion of, or release from, the sentence imposed by the ICC; or
(b) voluntarily returns to Australia after having left it.
178 Extradition of escaped ICC prisoner
(1) If:
(a) an ICC prisoner serving a sentence in a foreign country escapes from custody and is located in Australia; and
(b) the foreign country makes a request to Australia for the person’s surrender in accordance with article 111 of the Statute;
the Extradition Act 1988 applies to the request:
(c) subject to necessary limitations, conditions, exceptions or qualifications; and
(d) as if the request related to a person who had been convicted of an extradition offence (within the meaning of that Act).
(2) If:
(a) an ICC prisoner serving a sentence in Australia escapes from custody and is located in a foreign country; and
(b) the Attorney‑General wishes to make a request to that country for the person’s surrender in accordance with article 111 of the Statute;
the Attorney‑General may request the person’s extradition under the Extradition Act 1988, and that Act applies:
(c) with any necessary limitations, conditions, exceptions or qualifications; and
(d) as if the request related to a person who had been convicted of an extradition offence (within the meaning of that Act).
Part 13—Requests by Australia to ICC
179 Application of Part
This Part applies where:
(a) an investigation is taking place in Australia; or
(b) a prosecution has been instituted in Australia;
in respect of conduct that is a crime within the jurisdiction of the ICC or is an indictable offence against Australian law.
180 Request by Attorney‑General
(1) The Attorney‑General may request the ICC to provide assistance under paragraph 10 of article 93 of the Statute in connection with the investigation or prosecution.
(2) The assistance that may be requested includes, but is not limited to, the following:
(a) the sending of statements, documents or other types of evidence obtained in the course of an investigation or trial conducted by the ICC;
(b) the questioning of a person detained by order of the ICC.
Part 14—Miscellaneous
181 Attorney‑General’s decisions in relation to certificates to be final
(1) Subject to any jurisdiction of the High Court under the Constitution, a decision by the Attorney‑General to issue, or to refuse to issue, a certificate under section 22 or 29:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a decision includes a reference to the following:
(a) a decision to vary, suspend, cancel or revoke a certificate that has been issued;
(b) a decision to impose a condition or restriction in connection with the issue of, or a refusal to issue, a certificate or to remove a condition or restriction so imposed;
(c) a decision to do anything preparatory to the making of a decision to issue, or to refuse to issue, a certificate or preparatory to the making of a decision referred to in paragraph (a) or (b), including a decision for the taking of evidence or the holding of an inquiry or investigation;
(d) a decision doing or refusing to do anything else in connection with a decision to issue, or to refuse to issue, a certificate or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a decision whether or not to issue a certificate or a decision referred to in a paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court referred to in subsection (1) is exclusive of the jurisdiction of any other court.
182 Arrest of persons escaping from custody or contravening conditions of recognisances
(1) A police officer may, without warrant, arrest a person, if the police officer has reasonable grounds to believe that the person has escaped from custody authorised by this Act.
(2) A police officer may, without warrant, arrest a person who has been released on bail under this Act if the police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a term or condition of a recognisance on which bail was granted to the person.
(3) A police officer who arrests a person under subsection (1) or (2) must, as soon as practicable, take the person before a magistrate.
(4) If the magistrate is satisfied that the person has escaped from custody authorised by this Act or has contravened, or is about to contravene, a term or condition of a recognisance, the magistrate may issue a warrant, by writing in the statutory form, authorising any police officer to return the person to the custody from which the person escaped, or was released on the recognisance, as the case may be.
183 Aiding persons to escape etc.
Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have effect as if:
(a) arrest pursuant to this Act were arrest in respect of an offence against a law of the Commonwealth; and
(b) custody while in Australia pursuant to this Act were custody in respect of an offence against a law of the Commonwealth.
184 Cost of execution of requests
The Commonwealth is liable to pay any costs incurred in connection with dealing with a request for cooperation other than costs that, under article 100 of the Statute, are to be borne by the ICC.
185 Legal assistance
(1) A person who:
(a) has instituted, or proposes to institute, a proceeding before a magistrate or a court under this Act or in respect of detention under this Act; or
(b) is, or will be, a party to such a proceeding; or
(c) is, or will be, giving evidence or producing documents or other articles at such a proceeding;
may apply to the Attorney‑General for assistance under this section in respect of the proceeding.
(2) If the Attorney‑General is satisfied that:
(a) it would involve hardship to the person to refuse the application; and
(b) in all the circumstances, it is reasonable that the application be granted;
the Attorney‑General may authorise provision by the Commonwealth to the person of such legal or financial assistance in relation to the proceeding as the Attorney‑General determines.
(3) The assistance may be granted unconditionally or subject to such conditions as the Attorney‑General determines.
186 Arrangements with States
(1) The Governor‑General may make arrangements with the Governor of a State with respect to the administration of this Act, including arrangements relating to the performance of functions or the exercise of powers under this Act by officers of the State.
(2) An arrangement may be varied or terminated at any time.
(3) The Attorney‑General is to cause notice of the making, variation or termination of an arrangement to be published in the Gazette.
(4) The reference in subsection (1) to the Governor of a State is:
(a) in relation to the Australian Capital Territory—a reference to the Chief Minister for that Territory; or
(b) in relation to the Northern Territory—a reference to the Administrator of that Territory.
187 Delegation
The Attorney‑General may delegate in writing all or any of his or her powers and functions under this Act or the regulations, other than powers and functions under section 12 and Parts 3, 8 and 12 to:
(a) the Secretary of the Department; or
(b) an SES employee in the Department.
188 Regulations
(1) The Governor‑General may make regulations 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.
(2) In particular, regulations may make provision for or in respect of information to be provided to ICC prisoners for the purposes of Part 12.
(3) The regulations may prescribe penalties not exceeding a fine of 10 penalty units for offences against the regulations.
189 Annual report
The Department must publish each year, as an appendix to the Department’s Annual Report for that year, a report on the operation of this Act, the operations of the ICC, and the impact of the operations of the ICC on Australia’s legal system.
Division Division 3 - International Criminal Court Act 2002 - Arrest of persons | Zoe