26Requests for giving of evidence at hearings in foreign countries

#### 26 Requests for giving of evidence at hearings in foreign countries (1) Where: (a) a proceeding relating to a criminal matter has commenced in a foreign country; (b) the foreign country requests the attendance at a hearing in connection with the proceeding of a federal prisoner or a State prisoner who is in Australia (whether or not in custody); (c) there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and (d) the Attorney‑General is satisfied that: (i) the prisoner has consented to giving evidence in the foreign country; and (ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3); the Attorney‑General may, in his or her discretion: (e) in a case where the prisoner is being held in custody: (i) if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding; (ii) if the prisoner is a federal prisoner and also a State prisoner—direct, 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 travelling to the foreign country to give evidence at the proceeding; and (iii) in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney‑General for the purpose; or (f) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody: (i) if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required; (ii) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and (iii) in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country. (2) Where: (a) a proceeding relating to a criminal matter has commenced in a foreign country; (b) the foreign country requests the attendance at a hearing in connection with the proceeding of a person (not being a federal prisoner or a State prisoner) who is in Australia; (c) there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceeding; and (d) the Attorney‑General is satisfied that: (i) the person has consented to giving evidence in the foreign country; and (ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3); the Attorney‑General may, in his or her discretion, make arrangements for the travel of the person to the foreign country. (3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are: (a) that the person shall not: (i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia; (ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or (iii) be required to give evidence in any proceeding in the foreign country other than the proceeding to which the request relates; unless: (iv) the person has left the foreign country; or (v) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceeding to which the request relates; (b) that any evidence given by the person in the proceeding to which the request relates will be inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence; (c) that the person will be returned to Australia in accordance with arrangements agreed by the Attorney‑General; (d) in a case where the person is being held in custody in Australia and the Attorney‑General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country: (i) the making of appropriate arrangements for that purpose; (ii) that the person will not be released from custody in the foreign country unless the Attorney‑General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and (iii) if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the proceeding to which the request relates will be paid for by the foreign country; and (e) such other matters (if any) as the Attorney‑General thinks appropriate.