Other types of assistance - national procedures for ICC proceedings

Commonwealth of Australia

Australia - Mutual Assistance in Criminal Matters Act No. 85 1987 (2018)

Part IIIA—Assistance in relation to stored communications
15B Requests by foreign countries for stored communications
The Attorney General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney General is satisfied that:
(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) has commenced in the requesting country; and
(b) the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of:
(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) a fine of an amount that is at least equivalent to 900 penalty units; and
(c) there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and
(d) the requesting country has requested the Attorney General to arrange for access to the stored communications.
Note: Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979.

Part IIIBA—Assistance in relation to use of surveillance devices
15CA Requests by foreign countries for surveillance devices
(1) The Attorney General may, in his or her discretion, authorise an eligible law enforcement officer, in writing, to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if the Attorney General is satisfied that:
(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) that is punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty has commenced in the requesting country; and
(b) the requesting country requests the Attorney General to arrange for the use of a surveillance device; and
(c) the requesting country has given appropriate undertakings in relation to:
(i) ensuring that the information obtained as a result of the use of the surveillance device will only be used for the purpose for which it is communicated to the requesting country; and
(ii) the destruction of a document or other thing containing information obtained as a result of the use of the surveillance device; and
(iii) any other matter the Attorney General considers appropriate.
(2) In this section:
eligible law enforcement officer means a person mentioned in column 3 of item 5 of the table in subsection 6A(6), or in column 3 of item 5 of the table in subsection 6A(7), of the Surveillance Devices Act 2004.

15CB Simplified outline of this Part
• If a foreign country requests the Attorney General to arrange for access to data held in a computer, the Attorney General may authorise an eligible law enforcement officer to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004.
• The authorisation relates to an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of the foreign country.
Note: See subsection 27A(4) of the Surveillance Devices Act 2004.
15CC Requests by foreign countries for assistance in relation to data held in computers
(1) The Attorney General may, in the Attorney General’s discretion, authorise an eligible law enforcement officer, in writing, to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004 if the Attorney General is satisfied that:
(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) that is punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty has commenced in the requesting country; and
(b) the requesting country requests the Attorney General to arrange for access to data held in a computer (the target computer); and
(c) the requesting country has given appropriate undertakings in relation to:
(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 requesting country; 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.

Part IIIB—Assistance in relation to telecommunications data
15D Requests by foreign countries for telecommunications data
(1) This section applies if:
(a) a foreign country requests the disclosure of specified information or specified documents that come into existence during a specified period; and
(b) the information or documents relate to the fact of a communication passing over a telecommunications system.
(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system:
(a) if the information is the contents or substance of a communication; or
(b) to the extent that the documents contain the contents or substance of a communication.
(3) The Attorney General may authorise the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979, of a disclosure of information or documents to which this section applies, if he or she is satisfied that:
(a) an investigation relating to a criminal matter involving an offence against the law of the foreign country has commenced in that country; and
(b) the offence:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979.

Rome Statute

Article 93 Other forms of cooperation

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:

(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.