Enforcement of sentences imposed

Australia

Australia - ICC Act 2002 (2016)

Part 1—Preliminary

4 Definitions

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC

151 Assistance with enforcement of orders for reparation to victims

(1) This section applies if:

(a) the ICC:
(i) makes an order under article 75 of the Statute requiring reparation; and
(ii) requests that the order be enforced as if article 109 of the Statute were applicable; and
(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the ICC.

(2) The Attorney General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.


152 Assistance with enforcement of orders imposing fines

(1) This section applies if:

(a) the ICC:
(i) orders payment of a fine under paragraph 2(a) of article 77 of the Statute; and
(ii) requests that the order be enforced in accordance with article 109 of the Statute; and
(b) neither the conviction in respect of which the order was made nor the order for payment of the fine is subject to appeal or further appeal in the ICC.

(2) The Attorney General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.


153 Registration of order

(1) If the DPP applies to a court for registration of an order in accordance with an authorisation under section 151 or 152, the court must register the order and must direct the DPP to publish notice of the registration in the manner and within the period that the court considers appropriate.

(2) An order is to be registered in a court in the same way as the court registers an order made by another Australian court.

(3) Subject to subsection 154(3), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (2) of this section, taken to be the same as the authenticated copy.


154 Effect of order

(1) An order referred to in section 151 that is registered in a court has effect, and may be enforced, as if it were an order for the payment of money made by the court at the time of the registration.

(2) An order referred to in section 152 that is registered in a court has effect, and may be enforced, as if it were an order imposing a fine made by the court at the time of the registration.

(3) A registration effected by registering a faxed copy of an authenticated copy of an order ceases to have effect after 21 days unless the authenticated copy of the order has been filed by then in the court that registered the order.

`
Part 11—Forfeiture of proceeds of international crimes


155 Requests for enforcement of forfeiture orders

(1) This section applies if:
(a) the ICC requests the Attorney-General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
(b) the Attorney-General is satisfied:
(i) that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and
(ii) the conviction and the order are not subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order in a court specified in the notice.

(3) The court that the Attorney-General specifies in the notice under subsection (2) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

156 Registration of order

(1) If a proceeds of crime authority applies to a court for registration of an order in accordance with an authorisation under section 155, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) The proceeds of crime authority must give notice of the application:
(a) to specified persons who the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs.

(3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.

(4) An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.

(5) Subject to subsection (6), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (4), taken to be the same as the authenticated copy.

(6) A registration effected by registering a faxed copy of an authenticated copy of a forfeiture order ceases to have effect after 21 days unless the authenticated copy has been filed by then in the court that registered the order .

157 Effect of order

(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.

(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and
(b) subparagraph 68(1)(b)(ii) of that Act were omitted.

(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised in
writing by the Attorney-General for the purposes of this subsection.

(4) In giving a direction under subsection (3), the Attorney-General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.

(5) Sections 69 and 70, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.

158 Effect on third parties of registration of forfeiture order Applications by third parties

(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
(a) claims an interest in the property; and
(b) was not convicted of a crime within the jurisdiction of the ICC to which the order relates;
may apply to the court for an order under subsection (2).
Orders by the court

(2) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the
commission of a crime within the jurisdiction of the ICC to which the order relates; and
(b) if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;
the court must make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.

(4) The court may grant leave if it is satisfied that there are special grounds for doing so.

(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under
subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.

(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters

(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.

(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in such proceedings

159 Forfeiture may be treated as pecuniary penalty order

(1) This section applies if the Attorney General is unable to give effect to a forfeiture order.

(2) The Attorney General must take measures to recover:
(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or
(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney General’s opinion, is the value of that property.

(3) The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.

(4) Division 4 of Part 2 4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:

(a) references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and
(b) the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and
(c) subsections 140(3) and (5) of that Act were omitted.


Part 12—Enforcement in Australia of sentences imposed by ICC

Division 1—Preliminary


160 Australia may agree to act as State of enforcement

(1) The Attorney General may notify the ICC that Australia is willing to allow persons who are ICC prisoners to serve their sentences in Australia subject to such conditions (the enforcement conditions) as Australia imposes and are specified in the instrument of notification.

(2) The enforcement conditions that may be imposed include, but are not limited to:

(a) a condition that, unless the Attorney General determines that it is not necessary in a particular case, the ICC prisoner or his or her representative has consented in writing to the sentence being served in Australia; and
(b) a condition that the appropriate Ministerial consent has been given to the sentence being served in Australia; and
(c) a condition that any appeal or application for revision in respect of the sentence or in respect of the conviction on which it is based has been heard and determined or the period for bringing such an appeal or application has expired; and
(d) a condition that:
(i) on the day of receipt by Australia of the relevant designation under article 103 of the Statute, at least 6 months of the ICC prisoner’s sentence remains to be served; or
(ii) if a shorter period remains to be served on that day, the Attorney General has determined that, in the circumstances, transfer of the ICC prisoner to Australia for a shorter period is acceptable.

(3) The Attorney General may, at any time, notify the ICC that Australia withdraws a condition specified in the instrument of notification referred to in subsection (1).


161 Withdrawal of agreement to act as State of enforcement

(1) If the Attorney General notifies the ICC under section 160, the Attorney General may, at any time, withdraw the notification by notifying the ICC that Australia is no longer willing to allow ICC prisoners to serve their sentences in Australia.

(2) Any notification given under subsection (1) does not affect the enforcement of sentences for which the Attorney General had, before the notification was given, accepted the designation given to Australia by the ICC under section 164.


162 Designation of Australia as place for service of sentence

(1) If:

(a) the Attorney General has given a notification under section 160 and has not withdrawn the notification under section 161; and
(b) the ICC imposes a sentence of imprisonment on a person convicted of a crime within the jurisdiction of the ICC; and
(c) the ICC designates Australia, under article 103 of the Statute, as the country in which the sentence is to be served;
the Attorney General is to consider whether to accept the designation.

(2) Before accepting the designation, the Attorney General may request the ICC to provide the Attorney General with any relevant information that will enable the Attorney General to assess whether the designation should be accepted.


163 Governmental consent to acceptance of designation

(1) Before accepting the designation, the Attorney General is to determine the State in which it would be most appropriate for the ICC prisoner to serve the sentence of imprisonment imposed by the ICC and is to seek the consent of the State Minister concerned.

(2) The Attorney General is to provide the State Minister with particulars of any information that the ICC has given to the Attorney General.

(3) As soon as possible after receiving the particulars, the State Minister is to inform the Attorney General in writing whether the State Minister consents to the sentence being served in the State.

(4) If the State Minister refuses to consent to the sentence being served in the State, the Attorney General may seek the consent of another State Minister to the sentence being served in the State concerned.

(5) If a State Minister consents to the sentence being served in the State, that Minister is to notify the Attorney General of:

(a) the prison, or hospital or other place, in which the ICC prisoner is to serve the sentence in accordance with this Part in the State; and
(b) any other matters that the State Minister considers relevant to the service of the sentence in the State.

Note: An ICC prisoner may be transferred from the prison, hospital or other place in the State in which he or she begins to serve a sentence of imprisonment to another prison, hospital or other place in the State or to a prison, hospital or other place in another State (see paragraphs 172(5)(c), (d) and (h)).


164 Acceptance of designation

(1) The Attorney General may accept the designation if:

(a) the Attorney General is satisfied that the ICC has agreed to the enforcement conditions; and
(b) in the case of a prisoner who is not an Australian citizen—the Minister administering the Migration Act 1958 has consented to the sentence of imprisonment being served by the ICC prisoner in Australia; and
(c) a State Minister has consented to the sentence of imprisonment being served by the ICC prisoner in the State.

(2) When the Attorney General notifies the ICC of the acceptance of the designation, the Attorney General is also to notify the ICC whether the written consent of the ICC prisoner or his or her representative to the sentence being served in Australia is required and, if such a consent is required, ask the ICC to inform the Attorney General when it has been obtained.

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

serve a sentence imposed by the ICC includes complete the service of such a sentence that has been partly served.

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

4 Definitions

In this Act, unless the contrary intention appears:

...

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

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

4 Definitions

In this Act, unless the contrary intention appears:

serve a sentence imposed by the ICC includes complete the service of such a sentence that has been partly served.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC

151 Assistance with enforcement of orders for reparation to victims

(1) This section applies if:

(a) the ICC:

makes an order under article 75 of the Statute requiring reparation; and

requests that the order be enforced as if article 109 of the Statute were applicable; and

(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

152 Assistance with enforcement of orders imposing fines

(1) This section applies if:

(a) the ICC:
orders payment of a fine under paragraph 2(a) of article 77 of the Statute; and

requests that the order be enforced in accordance with article 109 of the Statute; and

(b) neither the conviction in respect of which the order was made nor the order for payment of the fine is subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

153 Registration of order

If the DPP applies to a court for registration of an order in accordance with an authorisation under section 151 or 152, the court must register the order and must direct the DPP to publish notice of the registration in the manner and within the period that the court considers appropriate.

An order is to be registered in a court in the same way as the court registers an order made by another Australian court.

Subject to subsection 154(3), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (2) of this section, taken to be the same as the authenticated copy.

154 Effect of order

An order referred to in section 151 that is registered in a court has effect, and may be enforced, as if it were an order for the payment of money made by the court at the time of the registration.

An order referred to in section 152 that is registered in a court has effect, and may be enforced, as if it were an order imposing a fine made by the court at the time of the registration.

A registration effected by registering a faxed copy of an authenticated copy of an order ceases to have effect after 21 days unless the authenticated copy of the order has been filed by then in the court that registered the order.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 11—Forfeiture of proceeds of international crimes

155 Requests for enforcement of forfeiture orders

(1) This section applies if:

the ICC requests the Attorney-General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
the Attorney-General is satisfied:

that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and

the conviction and the order are not subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order in a court specified in the notice.

(3) The court that the Attorney-General specifies in the notice under subsection (2) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

156 Registration of order

If a proceeds of crime authority applies to a court for registration of an order in accordance with an authorisation under section 155, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.

The proceeds of crime authority must give notice of the application:
to specified persons who the authority has reason to suspect may have an interest in the property; and
to such other persons as the court directs.

However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.

An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.

Subject to subsection (6), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (4), taken to be the same as the authenticated copy.

A registration effected by registering a faxed copy of an authenticated copy of a forfeiture order ceases to have effect after 21 days unless the authenticated copy has been filed by then in the court that registered the order.

157 Effect of order

(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.

(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:

the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and

subparagraph 68(1)(b)(ii) of that Act were omitted.

(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised in writing by the Attorney-General for the purposes of this subsection.

(4) In giving a direction under subsection (3), the Attorney-General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.

(5) Sections 69 and 70, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.

158 Effect on third parties of registration of forfeiture order

Applications by third parties

(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
claims an interest in the property; and

was not convicted of a crime within the jurisdiction of the ICC to which the order relates;

may apply to the court for an order under subsection (2).

Orders by the court

(2) If, on an application for an order under this subsection, the court is satisfied that:
the applicant was not, in any way, involved in the commission of a crime within the jurisdiction of the ICC to which the order relates; and

if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;

the court must make an order:

declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and either:

directing the Commonwealth to transfer the interest to the applicant; or

declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.

(4) The court may grant leave if it is satisfied that there are special grounds for doing so.

(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or

particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.

(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters

(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.

(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in such proceedings.

159 Forfeiture may be treated as pecuniary penalty order

This section applies if the Attorney-General is unable to give effect to a forfeiture order.

The Attorney-General must take measures to recover:

(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or

(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney-General’s opinion, is the value of that property.

The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.

Division 4 of Part 2-4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:

references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and

the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and

subsections 140(3) and (5) of that Act were omitted.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 1—Preliminary

Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC

151 Assistance with enforcement of orders for reparation to victims

(1) This section applies if:

(a) the ICC: makes an order under article 75 of the Statute requiring reparation; and
requests that the order be enforced as if article 109 of the Statute were applicable; and

(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

152 Assistance with enforcement of orders imposing fines

(1) This section applies if:

(a) the ICC:

orders payment of a fine under paragraph 2(a) of article 77 of the Statute; and

requests that the order be enforced in accordance with article 109 of the Statute; and

(b) neither the conviction in respect of which the order was made nor the order for payment of the fine is subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

153 Registration of order

If the DPP applies to a court for registration of an order in accordance with an authorisation under section 151 or 152, the court must register the order and must direct the DPP to publish notice of the registration in the manner and within the period that the court considers appropriate.

An order is to be registered in a court in the same way as the court registers an order made by another Australian court.

Subject to subsection 154(3), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (2) of this section, taken to be the same as the authenticated copy.

154 Effect of order

An order referred to in section 151 that is registered in a court has effect, and may be enforced, as if it were an order for the payment of money made by the court at the time of the registration.

An order referred to in section 152 that is registered in a court has effect, and may be enforced, as if it were an order imposing a fine made by the court at the time of the registration.

A registration effected by registering a faxed copy of an authenticated copy of an order ceases to have effect after 21 days unless the authenticated copy of the order has been filed by then in the court that registered the order.

Part 11—Forfeiture of proceeds of international crimes

155 Requests for enforcement of forfeiture orders

(1) This section applies if:

the ICC requests the Attorney-General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and

the Attorney-General is satisfied:

that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and

the conviction and the order are not subject to appeal or further appeal in the ICC.

(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order in a court specified in the notice.

(3) The court that the Attorney-General specifies in the notice under subsection (2) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

156 Registration of order

If a proceeds of crime authority applies to a court for registration of an order in accordance with an authorisation under section 155, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.

The proceeds of crime authority must give notice of the application:

to specified persons who the authority has reason to suspect may have an interest in the property; and
to such other persons as the court directs.

However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.

An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.

Subject to subsection (6), a faxed copy of an authenticated copy of an order is, for the purposes of subsection (4), taken to be the same as the authenticated copy.

A registration effected by registering a faxed copy of an authenticated copy of a forfeiture order ceases to have effect after 21 days unless the authenticated copy has been filed by then in the court
that registered the order.

157 Effect of order

(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.

(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:
the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and subparagraph 68(1)(b)(ii) of that Act were omitted.

(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised in writing by the Attorney-General for the purposes of this subsection.

(4) In giving a direction under subsection (3), the Attorney-General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.

(5) Sections 69 and 70, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.

158 Effect on third parties of registration of forfeiture order

Applications by third parties

(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
claims an interest in the property; and

was not convicted of a crime within the jurisdiction of the ICC to which the order relates;

may apply to the court for an order under subsection (2).

Orders by the court

(2) If, on an application for an order under this subsection, the court is satisfied that:

the applicant was not, in any way, involved in the commission of a crime within the jurisdiction of the ICC to which the order relates; and

if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;

the court must make an order:

declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and

either:

directing the Commonwealth to transfer the interest to the applicant; or

declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.

(4) The court may grant leave if it is satisfied that there are special grounds for doing so.

(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or

particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.

(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters

(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.

(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in such proceedings.

159 Forfeiture may be treated as pecuniary penalty order

This section applies if the Attorney-General is unable to give effect to a forfeiture order.

The Attorney-General must take measures to recover:

(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or

(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney-General’s opinion, is the value of that property.

The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.

Division 4 of Part 2-4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:

references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and

the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and

subsections 140(3) and (5) of that Act were omitted.

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 1—Preliminary

160 Australia may agree to act as State of enforcement

(1) The Attorney-General may notify the ICC that Australia is willing to allow persons who are ICC prisoners to serve their sentences in Australia subject to such conditions (the enforcement conditions) as Australia imposes and are specified in the instrument of notification.

(2) The enforcement conditions that may be imposed include, but are not limited to:
a condition that, unless the Attorney-General determines that it is not necessary in a particular case, the ICC prisoner or his or her representative has consented in writing to the sentence being served in Australia; and

a condition that the appropriate Ministerial consent has been given to the sentence being served in Australia; and

a condition that any appeal or application for revision in respect of the sentence or in respect of the conviction on which it is based has been heard and determined or the period for bringing such an appeal or application has expired; and

a condition that:

on the day of receipt by Australia of the relevant designation under article 103 of the Statute, at least 6 months of the ICC prisoner’s sentence remains to be served; or

if a shorter period remains to be served on that day, the Attorney-General has determined that, in the circumstances, transfer of the ICC prisoner to Australia for a shorter period is acceptable.

(3) The Attorney-General may, at any time, notify the ICC that Australia withdraws a condition specified in the instrument of notification referred to in subsection (1).

161 Withdrawal of agreement to act as State of enforcement

If the Attorney-General notifies the ICC under section 160, the Attorney-General may, at any time, withdraw the notification by notifying the ICC that Australia is no longer willing to allow ICC prisoners to serve their sentences in Australia.

Any notification given under subsection (1) does not affect the enforcement of sentences for which the Attorney-General had, before the notification was given, accepted the designation given to Australia by the ICC under section 164.

162 Designation of Australia as place for service of sentence

(1) If:

the Attorney-General has given a notification under section 160 and has not withdrawn the notification under section 161; and

the ICC imposes a sentence of imprisonment on a person convicted of a crime within the jurisdiction of the ICC; and

the ICC designates Australia, under article 103 of the Statute, as the country in which the sentence is to be served;

the Attorney-General is to consider whether to accept the designation.

(2) Before accepting the designation, the Attorney-General may request the ICC to provide the Attorney-General with any relevant information that will enable the Attorney-General to assess whether the designation should be accepted.

163 Governmental consent to acceptance of designation

Before accepting the designation, the Attorney-General is to determine the State in which it would be most appropriate for the ICC prisoner to serve the sentence of imprisonment imposed by the ICC and is to seek the consent of the State Minister concerned.

The Attorney-General is to provide the State Minister with particulars of any information that the ICC has given to the Attorney-General.

As soon as possible after receiving the particulars, the State Minister is to inform the Attorney-General in writing whether the State Minister consents to the sentence being served in the State.

If the State Minister refuses to consent to the sentence being served in the State, the Attorney-General may seek the consent of another State Minister to the sentence being served in the State concerned.

If a State Minister consents to the sentence being served in the State, that Minister is to notify the Attorney-General of:

the prison, or hospital or other place, in which the ICC prisoner is to serve the sentence in accordance with this Part in the State; and

any other matters that the State Minister considers relevant to the service of the sentence in the State.

164 Acceptance of designation

(1) The Attorney-General may accept the designation if:

the Attorney-General is satisfied that the ICC has agreed to the enforcement conditions; and
in the case of a prisoner who is not an Australian citizen—the Minister administering the Migration Act 1958 has consented to the sentence of imprisonment being served by the ICC prisoner in Australia; and a State Minister has consented to the sentence of imprisonment being served by the ICC prisoner in the State.

(2) When the Attorney-General notifies the ICC of the acceptance of the designation, the Attorney-General is also to notify the ICC whether the written consent of the ICC prisoner or his or her representative to the sentence being served in Australia is required and, if such a consent is required, ask the ICC to inform the Attorney-General when it has been obtained.

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

Part VI—Proceeds of crime
Division 2—Requests by foreign countries
Subdivision A—Enforcement of foreign orders
34E Enforcement of foreign restraining orders
(1) A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:
(a) was made by the court under the Proceeds of Crime Act at the time of the registration; and
(b) directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.
(2) In particular:
(a) section 288 of that Act applies as if:
(i) the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and
(ii) the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and
(b) section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and
(c) section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.
(3) Divisions 1, 2 and 3 of Part 2 1, section 33, Divisions 5 and 6 of Part 2 1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.
Note: Division 3 of this Part contains further provisions relating to registered foreign restraining orders.

Rome Statute

Article 103 Role of States in enforcement of sentences of imprisonment

1.

(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.

(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.

(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.

2.

(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.

(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:

(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;

(b) The application of widely accepted international treaty standards governing the treatment of prisoners;

(c) The views of the sentenced person;

(d) The nationality of the sentenced person;

(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.

4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104 Change in designation of State of enforcement

1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.

2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105 Enforcement of the sentence

1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.

2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106 Supervision of enforcement of sentences and conditions of imprisonment

1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.

2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.

3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 109 Enforcement of fines and forfeiture measures

1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.