PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

Co-operation relating to offences against administration of justice

23.
Co-operation relating to offences against administration of justice—

(2)In addition to the grounds of refusal or postponement specified in Parts 4 and 5, a request for surrender or other assistance that relates to an offence involving the administration of justice may be refused if, in the opinion of the Minister of Justice or Attorney-General, as the case may be, there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

30.
Response to be sent to ICC—


(2)If the Attorney-General or the Minister decides, in accordance with the Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notice to the ICC must set out the reasons for the decision.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

Official capacity of suspect or accused no bar to request

31.
Official capacity of person no bar to request—

(1)The existence of any immunity or special procedural rule attaching to the official capacity of any person is not a ground for—

(a)refusing or postponing the execution of a request for surrender or other assistance by the ICC; or

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Surrender and temporary surrender

47.
Minister must determine whether person to be surrendered—

(2)The Minister must make a surrender order in respect of the person unless—

(c)the Minister postpones the execution of a request for surrender in accordance with section 56; or

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

56.
Postponement of execution of request for surrender—

(1)The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if,—

(a)a ruling on admissibility of the kind specified in section 57(1) or section 59(1) or section 60 is pending before the ICC; or

(b)the request would interfere with an investigation or prosecution for a different offence against New Zealand law, as provided in section 58; or

(c)a request of the kind referred to in section 66(1)(c) is made to the ICC.

(2)Even if a case is one to which subsection (1) applies, the Minister may decide not to postpone the execution of the request; and, in that event, the Minister may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 47 or with effect at a later date under section 48 or a temporary surrender order under section 49.

(3)If the Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.

(4)A decision by the Minister to postpone the execution of a request—

(a)does not limit or affect—

(i)the District Court's ability to accept notification of consent to the surrender:

(ii)the ability to continue to detain a person under any warrant issued under this Part:

(b)does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.

(5)If no decision on the execution of the request for surrender is made within 6 months after the date of the Minister's decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.

(6)If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—

(a)discharge any order made under this Act:

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

57.
Previous proceedings against person sought—

(5)If an admissibility ruling is pending, the Minister may postpone the execution of a request until the ICC has made a determination on admissibility.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

58.
Ongoing New Zealand investigation or proceedings involving different conduct—

(2)If this section applies, the Minister may, after consultation with the ICC,—

(b)postpone the execution of the request until the New Zealand investigation or proceedings have been finally disposed of.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

59.
Person being prosecuted in New Zealand for same conduct—

(1)This section applies if—

(a)the ICC makes a request for surrender; and

(b)the request relates to conduct that would constitute an offence under New Zealand law; and

(c)either—

(i)the conduct is being investigated or prosecuted in New Zealand; or

(ii)the conduct had been investigated in New Zealand and a decision was made not to prosecute the person sought, that decision not being due to the unwillingness or genuine inability to prosecute; and

(d)a challenge to the admissibility of the case is being or has been made to the ICC under article 19(2)(b) of the Statute.

(2)If this section applies, the Minister may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

59.
Person being prosecuted in New Zealand for same conduct—

(1)This section applies if—

(a)the ICC makes a request for surrender; and

(b)the request relates to conduct that would constitute an offence under New Zealand law; and

(c)either—

(i)the conduct is being investigated or prosecuted in New Zealand; or

(ii)the conduct had been investigated in New Zealand and a decision was made not to prosecute the person sought, that decision not being due to the unwillingness or genuine inability to prosecute; and

(d)a challenge to the admissibility of the case is being or has been made to the ICC under article 19(2)(b) of the Statute.

(2)If this section applies, the Minister may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

60.
Other challenges to admissibility—

(1)If the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute, other than a challenge of the kind referred to in section 57 or section 59, the Minister may postpone the execution of a request under this Part pending a determination by the ICC.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

62.
Procedure where competing request from State Party—

(2)If the request is one to which subsection (1)(b) relates, then, pending the ICC's determination,—

(a)the steps required to be taken under the Extradition Act 1999 in relation to a request for extradition may continue to be taken; but

(b)No person may be surrendered under that Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

66.
Conflict with obligations to another State—

(1)This section applies if—

(a)the ICC makes a request for surrender; and

(b)the ICC has not previously made a final determination on whether or not article 98 of the Statute applies to that request; and

(c)a request is made to the ICC to determine whether or not article 98 of the Statute applies to the request for surrender.

(2)If this section applies, the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.

PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on provision of assistance

115.
Postponement of execution of assistance—

(1)The Attorney-General may postpone the execution of a request for assistance under this Part if, and only if,—

(a)the execution of the request would interfere with an ongoing investigation or prosecution for a different offence and section 117 applies; or

(b)a ruling on admissibility is pending before the ICC and section 118 applies; or

(c)there are competing requests from the ICC and from another State to which New Zealand is under an international obligation and section 119(2)(a) applies; or

(d)the request is for assistance under article 93(1)(l) of the Statute and is one to which section 113(4) applies; or

(e)a request of the kind referred to in section 120(2)(c) is made to the ICC.

(2)Even if a case is one to which subsection (1) applies, the Attorney-General may decide not to postpone the execution of the request, and in that event the request must be dealt with in accordance with this Part.

(3)If the Attorney-General postpones the execution of a request for assistance under this Part, the postponement may be for a reasonable time and may, if the Attorney-General considers it desirable, be extended from time to time.

Cf Statute, articles 93(9), 94, 95

PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on provision of assistance

117.
Postponement where ongoing investigation or prosecution—

(1)If the immediate execution of a request by the ICC for assistance to which this Part applies would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the Attorney-General may postpone the execution of the request for a period of time agreed between the Attorney-General and the ICC.

(2)Despite section 115(3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.

(3)Before making a decision to postpone the execution of a request, the Attorney-General must consider whether the assistance could be provided immediately subject to certain conditions.

(4)If the Attorney-General decides to postpone the execution of a request and the ICC seeks assistance in the preservation of evidence under article 93(1)(j) of the Statute, the Attorney-General must deal with that request in accordance with this Part.
Cf Statute, article 94

118.
Postponement where admissibility challenge—

(1)This section applies if the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute in respect of a case that a request to which this Part applies relates.

(2)If the ICC has not made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC's determination on admissibility is issued.

(3)If the ICC has made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of a request under this section but must deal with it under this Part.

(4)If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.

(5)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.

Cf Statute, article 95

119.
Competing requests—

(1)If the Attorney-General receives competing requests for assistance from the ICC and from another State to which New Zealand is under an obligation to respond, the Attorney-General must endeavour, after consultation with the ICC and the other State, to satisfy both requests.

(2)For the purposes of subsection (1), the Attorney-General may do either or both of the following:

(a)postpone the execution of either of the competing requests:

(b)attach conditions to the provision of assistance under either or both of the requests.

(3)If it is not possible to resolve the issue by consultation, the method of dealing with the competing requests must be resolved in accordance with article 90 of the Statute, and sections 61 to 65 apply with any necessary modifications.

Cf Statute, articles 90, 93(9)(a)

120.
Requests involving conflict with other international obligations—

(1)If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General must inform the ICC to enable it to direct its request to the other State or international organisation.

(2)Subsections (3) to (5) apply if—

(a)the ICC makes a request for assistance; and

(b)the ICC has not previously made a final determination on whether or not article 98(1) of the Statute applies to that request; and

(c)a request is made to the ICC to determine whether or not article 98(1) applies to the request for surrender.

(3)If this subsection applies, the Minister may postpone the request for assistance until the ICC advises whether or not it wishes to proceed with the request for assistance.

(4)If the ICC advises that it does not intend to proceed with the request, the request for assistance must be refused.

(5)If the ICC advises that it intends to proceed with the request for assistance, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

Cf Statute, article 98(1)

PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Miscellaneous

121.
Effect of authority to proceed—

At any time before a formal response is sent to the ICC, the Attorney-General may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 114 or section 115, even if the Attorney-General has previously given authority for the request to proceed.