Part 4—Other requests by ICC
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.
Part 4—Other requests by ICC
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.
(2) The authorisation 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.
Part 4—Other requests by ICC
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.
Part 4—Other requests by ICC
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.
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.
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.
(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.
(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.
(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.
Part 4—Other requests by ICC
Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of 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).
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.