Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13 Requests by foreign countries for the taking of evidence or the production of documents
(1) This section applies if a foreign country (the requesting country) requests:
(a) any of the following:
(i) that evidence be taken in Australia;
(ii) that evidence be taken in Australia and a tape recording be made of the evidence taken;
(iii) that evidence be taken in Australia for live transmission by means of video link to a courtroom or other place in the requesting country; or
(b) that documents or other articles in Australia be produced;
for the purposes of a proceeding in relation to a criminal matter in that country or another foreign country (the foreign proceeding).
(1A) The Attorney General may, by writing in accordance with the approved form, authorise:
(a) the taking of the evidence and its transmission to the requesting country; or
(b) the production of the documents or other articles and their transmission to the requesting country.
(2) If the Attorney General gives an authorisation under subsection (1A):
(a) in the case of the taking of evidence—a Magistrate or eligible Federal Circuit Court Judge may do all or any of the following:
(i) take evidence on oath or affirmation of the witness appearing before the Magistrate or Judge to give evidence in relation to the matter;
(ii) direct that all or part of the proceeding be conducted in private;
(iii) require a person to leave the place in Australia where the giving of evidence is taking place or going to take place;
(iv) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the foreign proceeding;
(v) subject to subsection 13AB(1), require the production of documents or other articles;
(vi) take such action as the Magistrate or Judge considers appropriate to facilitate the foreign proceeding;
(vii) perform any other function required by the regulations; or
(b) in the case of the production of documents or other articles—a Magistrate or eligible Federal Circuit Court Judge may, subject to subsection 13AB(1), require the production of the documents or other articles and, where the documents or other articles are produced, a Magistrate or eligible Federal Circuit Court Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney General.
Note 1: Subparagraph (2)(a)(i)—see also subsection (2C).
Note 2: Subparagraphs (2)(a)(ii), (iii) and (iv)—see also subsection (2B).
(2A) However, a Magistrate or eligible Federal Circuit Court Judge may not make a ruling about the admissibility of evidence in a foreign proceeding.
(2B) If a Magistrate or eligible Federal Circuit Court Judge is taking evidence for live transmission by means of video link to a courtroom or other place in the requesting country, the Magistrate or Judge:
(a) may only exercise the powers mentioned in subparagraphs (2)(a)(ii), (iii) and (iv) at the request of the foreign court; and
(b) may, at the request of the foreign court, assist with the administering by the foreign court of an oath or affirmation; and
(c) may administer an oath or affirmation.
(2C) If a Magistrate or eligible Federal Circuit Court Judge takes evidence as mentioned in subparagraph (2)(a)(i) but not for live transmission by means of video link to a courtroom, or other place, in the requesting country, the Magistrate or Judge must:
(a) if the requesting country requests that a tape recording be made of the evidence taken—cause a tape recording to be made of the evidence, certify that the evidence on the tape recording was taken by the Magistrate or Judge and cause the tape recording, or a copy of it, to be sent to the Attorney General; and
(b) in any other case—cause the evidence to be put in writing, certify that the evidence was taken by the Magistrate or Judge and cause the writing so certified to be sent to the Attorney General.
(2D) If, in taking evidence as mentioned in paragraph (2)(a), a Magistrate or eligible Federal Circuit Court Judge requires the production of documents or other articles under subparagraph (2)(a)(v), a Magistrate or eligible Federal Circuit Court Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney General.
(3) The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any).
(4) The Magistrate or eligible Federal Circuit Court Judge conducting a proceeding under subsection (2) may permit:
(a) the person to whom the proceeding in the requesting country relates;
(b) any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate or Judge; and
(c) the relevant authority of the requesting country;
to have legal representation at the proceeding before the Magistrate or Judge.
(4A) If the requesting country has so requested, the Magistrate or eligible Federal Circuit Court Judge conducting a proceeding under subsection (2) may permit:
(a) any person to whom the proceeding in the requesting country relates or that person’s legal representative; or
(b) the legal representative of the relevant authority of the requesting country;
to examine or cross examine in person, or through a video link from the requesting country, any person giving evidence or producing a document or other article, at the proceeding.
(4B) For the purposes of Part III of the Crimes Act 1914:
(a) the proceeding before the Magistrate or eligible Federal Circuit Court Judge is a judicial proceeding; and
(b) evidence taken from a witness on oath or affirmation is testimony given in a judicial proceeding.
(5) The certificate by the Magistrate or eligible Federal Circuit Court Judge under subsection (2) shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present:
(a) the person to whom the proceeding in the requesting country relates or his or her legal representative (if any);
(b) any other person giving evidence or producing documents or other articles or his or her legal representative (if any).
Part IV—Arrangements for persons to give evidence or assist investigations
Division 1—Requests by Australia
23 Release of certain persons upon request by foreign country
Where:
(a) a person is being held in custody in accordance with a direction of the Attorney General under section 18; and
(b) the foreign country from which the person has been brought requests the release of the person from custody;
the Attorney General shall direct that the person be released from custody.
Part IVA—Forensic procedures
Division 1—Requests by Australia
28A Requests by Australia for forensic procedures
(1) If:
(a) a proceeding relating to a criminal matter has commenced in Australia; and
(b) there are reasonable grounds to believe carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the proceeding;
Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in connection with the proceeding.
(2) If:
(a) an investigation relating to a criminal matter has commenced in Australia; and
(b) carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the investigation;
Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in relation to the investigation.
(3) To avoid doubt, Australia may request that a forensic procedure be carried out in the foreign country even if, under Australian law, the forensic procedure could not have been carried out by using processes similar to those used in the foreign country.
(4) Subsection (5) applies if:
(a) Australia makes a request under this section; and
(b) the foreign country obtains any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the carrying out (as requested by Australia) of a forensic procedure on a particular person.
(5) The thing obtained by the foreign country:
(a) is not inadmissible in evidence in the proceeding; or
(b) is not precluded from being used for the purposes of the investigation;
on the ground alone that it was obtained otherwise than in accordance with the request.
Part VI—Proceeds of crime
Division 1—Requests by Australia
32 Requests for enforcement of orders
Australia may request an appropriate authority of a foreign country to make arrangements for the enforcement of:
(a) an Australian forfeiture order against property that is believed to be located in that country;
(b) an Australian pecuniary penalty order, or an Australian literary proceeds order, where some or all of the property available to satisfy the order is believed to be located in that country; or
(c) an Australian restraining order against property that is believed to be located in that country;
if the order was made in respect of a serious offence.
33 Requests for issue of orders in foreign countries
Where a criminal proceeding or criminal investigation has commenced in Australia in relation to a serious offence, Australia may request an appropriate authority of a foreign country to obtain the issue, in respect of the offence, of a warrant, order or other instrument similar in nature to any of the following warrants and orders under the Proceeds of Crime Act:
(b) a restraining order;
(c) a production order;
(d) a search warrant;
(e) a monitoring order.
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.