Taking of evidence

Australia

Australia - ICC Act 2002 (2016)

Part 1—Preliminary

4 Definitions

evidence includes expert evidence.

evidential material means a thing relevant to a crime within the jurisdiction of the ICC, including such a thing in electronic form.

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:

(iii) the taking of evidence, including testimony on oath, and the production of evidence, including expert opinions and reports necessary to the ICC;

Part 4—Other requests by ICC

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 5—Taking evidence or producing documents or articles


67 Legal representation

(1) The evidence of a witness may be taken under section 65 in the presence or absence of:

(a) the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates; or
(b) his or her legal representative (if any).

(2) The magistrate conducting a proceeding under either section 65 or 66, or both, may permit:

(a) if the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates has been notified of the proceeding before the magistrate—that person; and
(b) any other person giving evidence or producing documents or other articles at the proceeding before the magistrate; and
(c) a representative of the Prosecutor or of the ICC;
to have legal representation at the proceeding before the magistrate.


68 Form of certificates

A certificate by a magistrate under subsection 65(3) or 66(2) must 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 investigation conducted by the Prosecutor, or the proceeding before the ICC, 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).


69 Compellability of persons to attend etc.

(1) Subject to subsections (2) and (3), the laws of each State or Territory with respect to compelling persons:

(a) to attend before a magistrate; and
(b) to give evidence, answer questions, and produce documents or other articles;
on the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to so compelling persons for the purposes of this Division.

(2) For the purposes of this Division, the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, is competent but not compellable to give evidence.

(3) If:

(a) a person is required to give evidence, or produce documents or other articles, for the purposes of an investigation conducted by the Prosecutor or a proceeding before the ICC; and
(b) the person is not compellable to answer a particular question, or to produce a particular document or article, for the purposes of that investigation or proceeding;
the person is not compellable to answer the question, or produce the document or article, for the purposes of this Division.

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:

...

evidence includes expert evidence.

evidential material means a thing relevant to a crime within the jurisdiction of the ICC, including such a thing in electronic form.

examination of a site that is a grave includes exhumation of the grave.

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

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:

the taking of evidence, including testimony on oath, and the production of evidence, including expert opinions and reports necessary to 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 4 Other requests by ICC

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:

evidence be taken in Australia; or

documents or other articles in Australia be produced; 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; and

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:

the taking of evidence or production of documents or other articles; and

the sending of evidence, documents or other articles to 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 4 Other requests by ICC

Division 5—Taking evidence or producing documents or articles

67 Legal representation

(1) The evidence of a witness may be taken under section 65 in the presence or absence of:

the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates; or

his or her legal representative (if any).

(2) The magistrate conducting a proceeding under either section 65 or 66, or both, may permit:
if the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates has been notified of the proceeding before the magistrate—that person; and

any other person giving evidence or producing documents or other articles at the proceeding before the magistrate; and

a representative of the Prosecutor or of the ICC;

to have legal representation at the proceeding before the magistrate.

68 Form of certificates

A certificate by a magistrate under subsection 65(3) or 66(2) must state whether, when the
evidence was taken or the documents or other articles were produced, any of the following persons were present:

the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, or his or her legal representative (if any);

any other person giving evidence or producing documents or other articles, or his or her legal representative (if any).


69 Compellability of persons to attend etc.

(1) Subject to subsections (2) and (3), the laws of each State or Territory with respect to compelling persons:

to attend before a magistrate; and

to give evidence, answer questions, and produce documents or other articles;

on the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to so compelling persons for the purposes of this Division.

(2) For the purposes of this Division, the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, is competent but not compellable to give evidence.

(3) If:

a person is required to give evidence, or produce documents or other articles, for the purposes of an investigation conducted by the Prosecutor or a proceeding before the ICC; and

the person is not compellable to answer a particular question, or to produce a particular document or article, for the purposes of that investigation or proceeding;

the person is not compellable to answer the question, or produce the document or article, for the purposes of this Division.

Australia - Telecommunications Act 1979 (2016)


Part 1-2—Interpretation

5B Exempt proceedings

(1) A reference in this Act to an exempt proceeding is a reference to:
a proceeding by way of a prosecution for a prescribed offence; or
a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or

(ba) a proceeding under the Spam Act 2003; or

(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 of the Criminal Code; or

(bc) a proceeding under, or a proceeding relating to a matter arising under, Division 105 of the Criminal Code, so far as the proceeding relates to a preventative detention order; or a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or

(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or

(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or a police disciplinary proceeding; or

(ea) a proceeding in so far as it relates to: a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or

(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service; a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or


(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or

(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or

(ha) a proceeding of an eligible Commonwealth authority; or (hb) a proceeding of the Independent Commission Against Corruption; or

(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or

(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or

(f) a proceeding of the IBAC; or

(iaa) a proceeding of the Victorian Inspectorate; or

(ia) a proceeding of the Corruption and Crime Commission; or

(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
a proceeding of the Police Integrity Commission; or

(ka) a proceeding of the Inspector of the Police Integrity
Commission; or

(kb) a proceeding of the Crime and Misconduct Commission; or (kc) a proceeding of the Independent Commissioner Against Corruption; or a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or a proceeding by way of review of a decision to refuse such a bail application; or a proceeding by way of a review of a decision to grant such a bail application.

Part 1-2—Interpretation

5B Exempt proceedings

(1) A reference in this Act to an exempt proceeding is a reference to:
a proceeding by way of a prosecution for a prescribed offence; or
a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or

(ba) a proceeding under the Spam Act 2003; or

(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 of the Criminal Code; or

(bc) a proceeding under, or a proceeding relating to a matter arising under, Division 105 of the Criminal Code, so far as the proceeding relates to a preventative detention order; or a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or

(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or

(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or a police disciplinary proceeding; or

(ea) a proceeding in so far as it relates to: a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or

(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service; a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or

(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or

(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or

(ha) a proceeding of an eligible Commonwealth authority; or (hb) a proceeding of the Independent Commission Against Corruption; or

(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or

(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or

(f) a proceeding of the IBAC; or

(iaa) a proceeding of the Victorian Inspectorate; or

(ia) a proceeding of the Corruption and Crime Commission; or

(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
a proceeding of the Police Integrity Commission; or

(ka) a proceeding of the Inspector of the Police Integrity
Commission; or

(kb) a proceeding of the Crime and Misconduct Commission; or (kc) a proceeding of the Independent Commissioner Against Corruption; or a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or a proceeding by way of review of a decision to refuse such a bail application; or a proceeding by way of a review of a decision to grant such a bail application.

(2) Without limiting subsection (1), a reference in Chapter 3 to an exempt proceeding includes a reference to:

(a) a proceeding by way of a prosecution for an offence punishable:

(i) by imprisonment for a period, or a maximum period, of at least 12 months; or

(ii) by a fine, or a maximum fine, of at least 60 penalty units if the offence is committed by an individual; or

(iii) if the offence cannot be committed by an individual— by a fine, or a maximum fine, of at least 300 penalty units; or

(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or

(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or

(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to such an offence; or

(e) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of such an offence; or

(f) a proceeding for recovery of a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 60 penalty units if the contravention is committed by an individual; or

(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 300 penalty units

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:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;