Commonwealth: International Criminal Court Act 2002 (Cth)

International Criminal Court Act 2002 No. 41, 2002 Compilation No. 10 Compilation date: 24 July 2021 Includes amendments up to: Act No. 78, 2021 Registered: 19 August 2021 About this compilation This compilation This is a compilation of the International Criminal Court Act 2002 that shows the text of the law as amended and in force on 24 July 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Principal object of Act 4 Definitions 5 Act to bind Crown 6 External Territories Part 2—General provisions relating to requests by the ICC for cooperation 7 What constitutes a request for cooperation 8 How requests for cooperation are to be made 9 Urgent requests for cooperation and requests for provisional arrest 10 Execution of requests 11 Consultations with ICC 12 Request that may raise problems relating to Australia's international obligations to a foreign country 13 Confidentiality of request 14 Response to be sent to ICC 15 Attorney‑General must take into account ICC's ability to refer matter to Assembly of States Parties or Security Council Part 3—Requests by the ICC for arrest and surrender of persons Division 1—Preliminary 16 Application of Part Division 2—Documentation to accompany request 17 Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued 18 Documentation for request for arrest and surrender of person already convicted 19 Documentation for request for provisional arrest Division 3—Arrest of persons 20 Arrest following request for arrest and surrender 21 Arrest following request for provisional arrest 22 Certificate by Attorney‑General 23 Remand 24 Procedure following application for bail 25 Release from remand on the Attorney‑General's direction 26 Release from remand after certain periods 27 Application for search warrants Division 4—Surrender of persons 28 Surrender warrants 29 Certificate by Attorney‑General 30 Surrender warrant may take effect at later date 31 Refusal of surrender 32 Postponement of execution of request for surrender 33 Previous proceedings against person sought 34 Ongoing Australian investigation or prosecution involving different conduct 35 Person being investigated or prosecuted in Australia for same conduct 36 Challenges to admissibility in other cases 37 Request from ICC and a foreign country relating to same conduct 38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute 39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute 40 Request from ICC and foreign country relating to different conduct 41 Notification of decision on extradition to foreign country 42 Detention following surrender warrants 43 Content of surrender warrants 44 Execution of surrender warrants 45 Release from remand 46 Effect of surrender to ICC on person's terms of imprisonment 47 Expiry of Australian sentences while under ICC detention 48 Waiver of rule of speciality Part 4—Other requests by ICC Division 1—Preliminary 49 Application of Part Division 2—Documentation to accompany request 50 Documentation for request Division 3—Restrictions on provision of assistance 51 Refusal of assistance 52 Postponement of execution of request 53 Procedure if assistance precluded under Australian law 54 Postponement where ongoing Australian investigation or prosecution would be interfered with 55 Postponement where admissibility challenge 56 Competing requests 57 Request from ICC and a foreign country relating to same conduct 58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute 59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute 60 Request from ICC and foreign country relating to different conduct 61 Notification to ICC of decision refusing request by foreign country 62 Requests involving competing international obligations Division 4—Identifying or locating persons or things 63 Assistance in identifying or locating persons or things Division 5—Taking evidence or producing documents or articles 64 Attorney‑General may authorise taking of evidence or the production of documents or articles 65 Taking of evidence 66 Producing documents or other articles 67 Legal representation 68 Form of certificates 69 Compellability of persons to attend etc. Division 5A—Providing law enforcement agency material 69A Authorising provision of material obtained by law enforcement agencies Division 6—Questioning of person being investigated or prosecuted 70 Assistance in questioning persons 71 Procedure where person questioned Division 7—Service of documents 72 Assistance in arranging service of documents 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 Division 9—Temporary transfer of prisoners to the ICC 74 Prisoners assisting investigation or giving evidence 75 Effect of removal to foreign country on prisoners' terms of imprisonment Division 10—Examination of places or sites 76 Assistance in examining places or sites Division 10A—Forensic procedures 76A Authorising application for carrying out of forensic procedures 76B Providing forensic evidence to the ICC Division 11—Search and seizure 77 Attorney‑General may authorise applications for search warrants 78 Applications for search warrants Division 11A—Stored communications 78A Authorising application for a stored communications warrant Division 11B—Prospective telecommunications data 78B Authorising an authorisation for the disclosure of prospective telecommunications data Division 12—Provision of records or documents 79 Facilitating the provision of records or documents Division 12A—Requests for surveillance devices 79A Authorising applications for surveillance device warrants Division 12B—Requests for access to data held in computers 79B Authorising applications for computer access warrants Division 13—Protecting victims and witnesses and preserving evidence 80 Protecting victims and witnesses and preserving evidence 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 81A Authorising applications under the Proceeds of Crime Act Subdivision B—Restraining orders 82 Applying for and making restraining orders 83 Excluding property from restraining orders 84 When restraining order ceases to be in force Subdivision C—Production orders relating to crimes within the jurisdiction of the ICC 86 Applying for and making production orders 87 Retaining produced documents Subdivision D—Notices to financial institutions 88 Giving notices to financial institutions 89 Contents of notices to financial institutions 90 Protection from suits etc. for those complying with notices 91 Making false statements in applications 92 Disclosing existence or nature of notice 93 Failing to comply with a notice Subdivision E—Monitoring orders relating to crimes within the jurisdiction of the ICC 95 Applying for and making monitoring orders 96 Passing on information given under monitoring orders Subdivision F—Search warrants relating to proceeds of crime and evidential material 98 Applying for and issuing search warrants 99 Contents of POCA search warrants 99A Seizure of certain property or things found in the course of search 100 Return of seized property to third parties 101 Dealing with certain seized property 102 Dealing with evidential material and certain property or things seized under POCA search warrants Division 15—Other types of assistance 103 Other types of assistance Division 16—Miscellaneous 104 Effect of authorisation to execute request 105 Request may relate to assistance sought by defence 106 Prosecutor may execute request Part 5—Investigations or sittings of the ICC in Australia 107 Prosecutor may conduct investigations in Australia 108 ICC sittings in Australia 109 ICC's powers while sitting in Australia 110 ICC may require witnesses at sittings in Australia to give undertakings as to truthfulness of their evidence Part 6—Search, seizure and powers of arrest Division 1—Search warrants 111 When search warrants can be issued 112 Content of warrants 113 The things authorised by a search warrant in relation to premises 114 The things authorised by a search warrant in relation to a person 115 Restrictions on personal searches 116 Warrants may be issued by telephone etc. 117 Formalities relating to warrants issued by telephone etc. Division 2—Provisions relating to execution of search warrants 118 Availability of assistance and use of force in executing a warrant 119 Copy of warrant to be shown to occupier etc. 120 Specific powers available to officers executing warrants 121 Use of equipment to examine or process things 122 Use of electronic equipment at premises 123 Compensation for damage to electronic equipment 124 Copies of seized things to be provided 125 Occupier entitled to be present during search 126 Receipts for things seized under warrant Division 3—Stopping and searching conveyances 127 Searches without warrant in emergency situations 128 How a police officer exercises a power to search without warrant Division 4—Arrest and related matters 129 Power to enter premises to arrest person 130 Use of force in making arrest 131 Persons to be informed of grounds of arrest 132 Power to conduct a frisk search of an arrested person 133 Power to conduct an ordinary search of an arrested person 134 Power to conduct search of arrested person's premises 135 Power to conduct an ordinary search or strip search 136 Rules for conduct of strip search Division 5—General 137 Conduct of ordinary searches and frisk searches 138 Announcement before entry 139 Offences relating to telephone warrants 140 Retention of things seized 141 Magistrate may permit a thing to be retained Part 7—Information provided in confidence by third party 142 Disclosure of information provided in confidence by third party 143 Request for Australia's consent to disclosure Part 8—Protection of Australia's national security interests 144 How national security issues are to be dealt with 145 Request for cooperation involving national security 146 Request to disclose information or documents involving national security 147 Other situations involving national security 148 Consultation with ICC required 149 Procedure where no resolution Part 9—Transportation of persons in custody through Australia 150 Transportation of persons in custody through Australia Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC 151 Assistance with enforcement of orders for reparation to victims 152 Assistance with enforcement of orders imposing fines 153 Registration of order 154 Effect of order Part 11—Forfeiture of proceeds of international crimes 155 Requests for enforcement of forfeiture orders 156 Registration of order 157 Effect of order 158 Effect on third parties of registration of forfeiture order 159 Forfeiture may be treated as pecuniary penalty order Part 12—Enforcement in Australia of sentences imposed by ICC Division 1—Preliminary 160 Australia may agree to act as State of enforcement 161 Withdrawal of agreement to act as State of enforcement 162 Designation of Australia as place for service of sentence 163 Governmental consent to acceptance of designation 164 Acceptance of designation Division 2—Transfer to Australia of ICC prisoners 165 Issue of warrant for transfer to Australia 166 Warrants for transfer to Australia 167 Cancellation of warrant Division 3—Enforcement of sentences 168 Sentence enforcement in Australia 169 Duration and nature of enforced sentence 170 Directions about enforcement of sentence 171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney‑General 172 ICC prisoner transferred to Australia to be regarded as a federal prisoner 173 Other matters relating to ICC prisoners 174 Pardon, amnesty or commutation of sentences of imprisonment imposed on ICC prisoners transferred to Australia 175 ICC prisoner may apply to be transferred from Australia to a foreign country 176 How ICC prisoner is to be transferred 177 Special rules in certain cases 178 Extradition of escaped ICC prisoner Part 13—Requests by Australia to ICC 179 Application of Part 180 Request by Attorney‑General Part 14—Miscellaneous 181 Attorney‑General's decisions in relation to certificates to be final 182 Arrest of persons escaping from custody or contravening conditions of recognisances 183 Aiding persons to escape etc. 184 Cost of execution of requests 185 Legal assistance 186 Arrangements with States 187 Delegation 188 Regulations 189 Annual report Schedule 1—Rome Statute of the International Criminal Court Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history 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. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Part 1 and anything in this Act not elsewhere covered by this table The day after this Act receives the Royal Assent 28 June 2002 2. Parts 2 to 14 A single day to be fixed by Proclamation, subject to subsections (3) to (6) 26 September 2002 (Gazette 2002, No. GN38) 3. Schedule 1 The day after this Act receives the Royal Assent 28 June 2002 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