Other types of assistance

Australia

Australia - ICC Act 2002 (2016)

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:

(b) any other type of assistance that is not prohibited by Australian law, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes.

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

11 Consultations with ICC

(2) Before refusing a request for assistance of a kind mentioned in paragraph 1(l) of article 93 of the Statute, the Attorney General must consult with the ICC to ascertain whether the assistance requested could be provided:

(a) subject to conditions; or
(b) at a later date or in an alternative manner.

Part 4—Other requests by ICC

Division 4—Identifying or locating persons or things


63 Assistance in identifying or locating persons or things

(1) This section applies if:

(a) the ICC requests assistance in locating, or identifying and locating, a person or thing; 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) the person or thing is or may be in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, the making of inquiries for the purpose of locating, or identifying and locating, the person or thing.

(3) If the Attorney General authorises the making of such inquiries, an appropriate authority is to locate, or identify and locate, the person or thing.

(4) The authority is to notify the Attorney General of the result of the inquiries.

(5) This section does not give to any person a power to enter premises.


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.


65 Taking of evidence

(1) If the Attorney General authorises the taking of evidence, a magistrate:

(a) must give written notice to each person from whom evidence is to be taken stating that the authorisation has been given and setting out the date and time when, and the place where, the evidence is to be taken; and
(b) may take the evidence on oath from each witness appearing before the magistrate to give evidence in relation to the matter.

(2) Evidence from a witness may be taken by means of video or audio technology.

(3) A magistrate who takes any such evidence must:

(a) cause the evidence to be recorded in writing or in any other form that the magistrate considers to be appropriate in the circumstances; and
(b) certify that the evidence was taken by the magistrate; and
(c) cause the writing, or other record of the evidence, so certified to be sent to the Attorney General.


66 Producing documents or other articles


(1) If the Attorney General authorises the production of documents or other articles, a magistrate:

(a) must give written notice to each person by whom documents or other articles are to be produced stating that the authorisation has been given and setting out the date and time when, and the place where, the documents or other articles are to be produced; and
(b) may require production of the documents or other articles.

(2) Subject to subsection (3), if the documents or other articles are produced, the magistrate must send them to the Attorney General together with a written statement certifying that they were produced to the magistrate.

(3) In the case of documents, the magistrate may send to the Attorney General copies of the documents certified by the magistrate to be true copies.


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.


Division 6—Questioning of person being investigated or prosecuted


70 Assistance in questioning persons

(1) This section applies if:

(a) the ICC requests assistance in questioning a person; and
(b) the Attorney General is satisfied that:
(i) the request relates to an investigation of the person that is being conducted by the Prosecutor or to a prosecution of the person before the ICC; and
(ii) the person is or may be in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, the questioning of the person.

(3) If the Attorney General authorises the questioning of the person, a magistrate is to ask the person in writing to appear before the magistrate at a specified time and place for the purpose of being questioned.

(4) If the person appears before the magistrate:

(a) the magistrate, a police officer or the DPP may ask the person questions to which the request relates; and
(b) the magistrate must cause a record in writing, or in another form that the magistrate considers to be appropriate in the circumstances, to be made of the questions asked and any answers given; and
(c) the magistrate must certify the correctness of the record; and
(d) the magistrate must cause the record so certified to be sent to the Attorney General.

(5) If the person refuses or fails to appear before the magistrate, the magistrate is to notify the Attorney General in writing of the refusal or failure.


71 Procedure where person questioned

(1) Before a person is questioned under section 70, the person must be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the ICC and that he or she has the following rights:

(a) the right to remain silent without such silence being a consideration in the determination of guilt or innocence;
(b) the right to have legal assistance of his or her choosing or, if he or she does not have legal assistance, to have legal assistance assigned to him or her in any case where the interests of justice so require and without payment by him or her in such a case if he or she does not have sufficient means to pay for the assistance;
(c) the right to have his or her legal representative present when he or she is questioned unless he or she has voluntarily waived that right.

(2) If there is any inconsistency between subsection (1) and any other Australian law, subsection (1) prevails.

(3) This section does not give to any person a power to require another person to answer questions.


Division 7—Service of documents

72 Assistance in arranging service of documents

(1) This section applies if:

(a) the ICC requests assistance in arranging for the service of a document in Australia; 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) the person is or may be in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, the service of the document.

(3) If the Attorney General authorises the service of the document, an appropriate authority is to:

(a) cause the document to be served:
(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Australia, or no procedure is specified—in accordance with Australian law;
and send to the Attorney General a certificate stating that the document has been served; or
(b) if the document is not served—send to the Attorney General a statement of the matters that prevented service.

(4) In this section:
document includes:

(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused person that has been issued under paragraph 7 of article 58 of the Statute.

(5) If:

(a) a document that is served on a person pursuant to an authority given under this section is a summons referred to in subsection (4); and
(b) the person fails to comply with the summons;
the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 12 months.


Division 8—Facilitating the voluntary appearance of persons (other than prisoners) as witnesses or experts before the ICC


73 Persons (other than prisoners) assisting investigation or giving evidence

(1) This section applies if:

(a) the ICC requests assistance in facilitating the voluntary appearance of a person as a witness or expert before the ICC; 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) the person’s appearance is requested so that the person can assist the investigation or give evidence at the proceeding; and
(iii) the person is in Australia and is not a prisoner; and
(iv) the person has consented in writing to assisting the investigation or giving evidence at the proceeding.

(2) The Attorney General is to execute the request by making arrangements for the travel of the person to the ICC.


Division 9—Temporary transfer of prisoners to the ICC


74 Prisoners assisting investigation or giving evidence

(1) This section applies if:

(a) the ICC requests assistance in facilitating the temporary transfer of a person to the ICC; and
(b) the person is a prisoner who is in Australia (whether or not in custody); and
(c) 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) the prisoner’s attendance is requested for the purpose of assisting the investigation or giving evidence at the proceeding; and
(iii) the prisoner has consented in writing to assisting the investigation or giving evidence at the proceeding; and
(iv) the prisoner will be returned without delay by the ICC to Australia when the purposes of the transfer have been fulfilled.

(2) If the prisoner is being held in custody, the Attorney General is to execute the request by:

(a) if the prisoner is a federal prisoner and is not also a State prisoner—directing that the prisoner be released from prison for the purpose of travelling to the ICC to assist the investigation or give evidence at the proceeding; or
(b) if the prisoner is a federal prisoner and also a State prisoner—directing, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of such travel; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner—seeking any approvals required to be obtained from an authority of the relevant State;
and, in any case, subject to the giving of any necessary directions or the obtaining of any necessary approvals relevant to release of the prisoner, making arrangements for such travel in the custody of a police officer, or prison officer, appointed by the Attorney General for the purpose.

(3) If the prisoner, having been released from custody on parole, is not being held in custody, the Attorney General is to execute the request by:

(a) if the prisoner is a federal prisoner and is not also a State prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(b) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any parole decisions required to be obtained from an authority of the relevant State:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) seeking such parole decisions under the law of the relevant State as may be required;
and, in any case, subject to the obtaining of any necessary parole decisions, making arrangements for the travel of the prisoner to the ICC.

(4) In this section:
parole includes any order or licence to be at large.
parole decision means any approval, authority or permission relating to parole, and includes any variation of parole.


75 Effect of removal to foreign country on prisoners’ terms of imprisonment

A person who is serving a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory, or is otherwise subject to detention under a law of the Commonwealth or of a Territory, is taken to continue to serve that sentence of imprisonment, or to continue to be subject to that detention, at any time during which the person:

(a) is released from a prison under section 74 pursuant to a request by the ICC; and
(b) is in custody in connection with the request (including custody outside Australia).


Division 10—Examination of places or sites


76 Assistance in examining places or sites

(1) This section applies if:

(a) the ICC requests assistance in examining places or sites in Australia; 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.

(2) The Attorney General is to execute the request by authorising, in writing, the examination of the places or sites.

(3) If the Attorney General authorises the examination of a place or site, an appropriate authority is to:

(a) examine the place or site in the way sought in the request; and
(b) make such report on the examination as the authority considers appropriate in the circumstances; and
(c) send the report to the Attorney General.

(4) An authorisation under this section confers power on a person acting under the authorisation to enter a place or site for the purpose of examining it.


Division 11—Search and seizure


77 Attorney General may authorise applications for search warrants

(1) This section applies if:

(a) the ICC makes a request to the Attorney General compliance with which may involve the issue of a search warrant in relation to evidential material; 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 to believe that the material is in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, a police officer to apply to a magistrate of the State or Territory in which that material is believed to be located for a search warrant.


78 Applications for search warrants

(1) If:

(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to that person to search for that material.

(3) For the purposes of this section, the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

Note: Part 6 deals with search warrants.


Division 12—Provision of records or documents


79 Facilitating the provision of records or documents

(1) This section applies if:

(a) the ICC requests assistance for the provision of records or documents, including official records or official documents; 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) the records or documents are or may be in Australia.

(2) The Attorney General is to execute the request by authorising, in writing, the provision of the records or documents.

(3) If the Attorney General authorises the provision of records or documents, an appropriate authority is to:

(a) locate and make available the records or documents; and
(b) make such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send to the Attorney General the report and any of the records or documents that are located.

(4) This section does not give to any person power to require the production of a record or document.


Division 13—Protecting victims and witnesses and preserving evidence


80 Protecting victims and witnesses and preserving evidence
(1) This section applies if:

(a) the ICC requests assistance in protecting victims or witnesses or preserving evidence; 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) the assistance sought is not prohibited by Australian law.

(2) The Attorney General is to execute the request by authorising, in writing, the provision of the assistance.

(3) If the Attorney General authorises the provision of the assistance, an appropriate authority is to:

(a) give effect to the request; and
(b) prepare such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send the report to the Attorney General.



Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC


Subdivision A—Preliminary


81 Application of Division

This Division applies if:

(a) the ICC makes a request to the Attorney General for the identification, tracing, and freezing or seizure, of the proceeds of a crime within the jurisdiction of the ICC; and
(b) the Attorney General is satisfied that a person (in this Division called the defendant):
(i) has been, or is about to be, charged with the crime before the ICC; or
(ii) has been convicted by the ICC of the crime.


Subdivision B—Restraining orders


82 Applying for and making restraining orders

(1) If the request from the ICC referred to in section 81 involves the making of a restraining order, the Attorney General is to authorise the DPP to apply to a specified court for a restraining order against the property concerned.

(2) The court specified 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.

(3) If so authorised, the DPP may apply for such a restraining order against that property in respect of the crime.

(4) Part 2 1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.

(5) It applies as if:

(a) references in that Part to an indictable offence were references to the crime within the jurisdiction of the ICC; and
(b) references in that Part to a court with proceeds jurisdiction were references to the court specified in the DPP’s authorisation under subsection (1); and
(c) references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a crime within the jurisdiction of the ICC has commenced in the ICC; and
(d) references in that Part to it being proposed to charge a person with an indictable offence were references to it being reasonably suspected that criminal proceedings are about to commence against the person in the ICC in respect of a crime within the jurisdiction of the ICC; and
(e) paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act were omitted.


83 Excluding property from restraining orders

If:

(a) a court makes a restraining order under Part 2 1 of the Proceeds of Crime Act against property in respect of the crime within the jurisdiction of the ICC; and
(b) a person having an interest in the property applies to the court under Division 3 of Part 2 1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;
the court must grant the application if the court is satisfied that:
(c) in a case where the applicant is not the defendant:
(i) the applicant was not, in any way, involved in the commission of the crime; and
(ii) if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the crime—the property was not proceeds of the crime; or
(d) in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.


84 When restraining order ceases to be in force

(1) If, at the end of the period of one month after the making of a restraining order in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC, the person has not been charged with the crime or a related crime within the jurisdiction of the ICC, the order ceases to be in force at the end of that period.

(2) If:

(a) a restraining order is made in reliance on a person’s conviction of a crime within the jurisdiction of the ICC or the charging of a person with such a crime; or
(b) a restraining order is made in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC and the person is, within one month after the making of the order, charged with the crime or a related crime within the jurisdiction of the ICC;
the following provisions have effect:
(c) if the charge is withdrawn and the person is not charged with a related crime within the jurisdiction of the ICC within 28 days after the day on which the charge is withdrawn, the restraining order ceases to be in force at the end of that period;
(d) if the person is acquitted of the charge and the person is not charged with a related crime within the jurisdiction of the ICC within 28 days after the day on which the acquittal occurs, the restraining order ceases to be in force at the end of that period;
(e) if some or all of the property subject to the restraining order is forfeited under Part 11, the restraining order, to the extent to which it relates to that property, ceases to be in force when that property is forfeited;
(f) the restraining order ceases to be in force if and when it is revoked.


Subdivision C—Production orders relating to crimes within the jurisdiction of the ICC


85 Requests for production orders

(1) If:

(a) the request from the ICC referred to in section 81 involves the issue of a production order requiring that a property tracking document be produced or made available for inspection in accordance with Australian law; 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 suspecting that a property tracking document in relation to the crime is located in Australia;
the Attorney General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a production order under the Proceeds of Crime Act in respect of the crime for the purpose of obtaining possession of the property tracking document.

(2) The State or Territory specified must be a State or Territory in which the document is, or some or all of the documents are, reasonably suspected of being located.


86 Applying for and making production orders

(1) If so authorised, the authorised officer may apply for such a production order against the property in respect of the crime.

(2) Part 3 2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.

(3) It applies as if:

(a) references in that Part to an indictable offence or to a serious offence were references to the crime within the jurisdiction of the ICC; and
(b) references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 85(1); and
(c) subparagraphs 202(5)(a)(ii) and (iii) and (c)(ii) and (iii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.


87 Retaining produced documents

(1) An authorised officer who takes possession of a document under a production order made in respect of a crime within the jurisdiction of the ICC may retain the document pending a written direction from the Attorney General as to how to deal with the document.

(2) Directions from the Attorney General may include a direction that the document be sent to the ICC.


Subdivision D—Notices to financial institutions


88 Giving notices to financial institutions

(1) The Attorney General or a senior Departmental officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:

(a) determining whether an account is held by a specified person with the financial institution;
(b) determining whether a particular person is a signatory to an account;
(c) if a person holds an account with the institution, the current balance of the account;
(d) details of transactions on such an account over a specified period of up to 6 months;
(e) details of any related accounts (including names of those who hold those accounts);
(f) a transaction conducted by the financial institution on behalf of a specified person.

(2) The Attorney General or the senior Departmental officer must not issue the notice unless he or she reasonably believes that giving the notice is required:

(a) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or
(b) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.

(3) In this section:
senior Departmental officer has the same meaning as in the Proceeds of Crime Act.


89 Contents of notices to financial institutions

The notice must:

(a) state that the officer giving the notice believes that the notice is required:
(i) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or
(ii) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division;
(as the case requires); and
(b) specify the name of the financial institution; and
(c) specify the kind of information or documents required to be provided; and
(d) specify the form and manner in which that information or those documents are to be provided; and
(e) state that the information or documents must be provided within 14 days after the day on which the notice is received; and
(f) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 92 (disclosing existence or nature of a notice); and
(g) set out the effect of section 93 (failing to comply with a notice).


90 Protection from suits etc. for those complying with notices

(1) No action, suit or proceeding lies against:

(a) a financial institution; or
(b) an officer, employee or agent of the institution acting in the course of that person’s employment or agency;

in relation to any action taken by the institution or person under a notice under section 88 or in the mistaken belief that action was required under the notice.

(2) A financial institution which, or an employee or agent of a financial institution who, provides information under a notice under section 88 is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money laundering), not to have been in possession of that information at any time.


91 Making false statements in applications

A person is guilty of an offence if:

(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, a notice under section 88.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.


92 Disclosing existence or nature of notice
A person is guilty of an offence if:

(a) the person is given a notice under section 88; and
(b) the notice states that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.


93 Failing to comply with a notice

A person is guilty of an offence if:

(a) the person is given a notice under section 88; and
(b) the person fails to comply with the notice.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.


Subdivision E—Monitoring orders relating to crimes within the jurisdiction of the ICC


94 Requests for monitoring orders

(1) If:

(a) the request from the ICC referred to in section 81 involves the issue of an order directing a financial institution to give information about transactions conducted through an account with the financial institution in Australia; 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) information about transactions conducted through the account with the financial institution in Australia is reasonably suspected of being relevant to the investigation or proceedings;
the Attorney General may authorise an authorised officer of an enforcement agency to apply to a judge of a specified court for a monitoring order under the Proceeds of Crime Act in respect of the crime within the jurisdiction of the ICC for the purpose of obtaining the information requested by the ICC.

(2) The court specified must be a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment.


95 Applying for and making monitoring orders

(1) If so authorised, the authorised officer may apply for such a monitoring order against the account in respect of the crime.

(2) Part 3 4 of the Proceeds of Crime Act applies to the application, and to any monitoring order made as a result.

(3) It applies as if:

(a) references in that Part to a serious offence were references to a crime within the jurisdiction of the ICC; and
(b) disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 96 of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act.


96 Passing on information given under monitoring orders

If an enforcement agency is given information under a monitoring order made in relation to a crime within the jurisdiction of the ICC, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:

(a) the Attorney General; or
(b) an APS employee in the Attorney General’s Department specified by the Attorney General by written notice to the enforcement agency.


Subdivision F—Search warrants relating to proceeds of crime and property tracking documents


97 Requests for search warrants

(1) If:

(a) the request from the ICC referred to in section 81 involves the issue of a search warrant relating to the proceeds of the crime within the jurisdiction of the ICC or a property tracking document; 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) proceeds of the crime, or a property tracking document in relation to the crime, is reasonably suspected of being located in Australia;
the Attorney General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a search warrant under the Proceeds of Crime Act in relation to the proceeds or document.

(2) The State or Territory specified must be a State or Territory in which:

(a) the proceeds, or some or all of the proceeds, are reasonably suspected of being located; or
(b) the document is, or some or all of the documents are, reasonably suspected of being located.

98 Applying for and issuing search warrants

(1) If so authorised, the authorised officer may apply for such a search warrant, in relation to those proceeds or that document, in respect of the crime.

(2) Part 3 5 of the Proceeds of Crime Act applies to the application, and to any search warrant issued as a result.

(3) It applies as if:

(a) references in that Part to a property tracking document were references to a property tracking document relating to the crime; and
(b) references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 97(1); and
(c) paragraph 228(1)(d) and sections 256 to 258 of that Act were omitted.


99 Seizure of other property and documents

(1) A search warrant issued under Part 3 5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC authorises an authorised officer to seize property or a thing that he or she finds and believes on reasonable grounds to be:

(a) proceeds of the crime or a property tracking document in relation to the crime, although not of the kind specified in the warrant; or
(b) proceeds of, or a property tracking document in relation to, another crime within the jurisdiction of the ICC in relation to which a search warrant issued under that Part is in force; or
(c) something that:
(i) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(ii) will afford evidence as to the commission of an Australian criminal offence.
(2) However, this section only applies if the authorised officer believes on reasonable grounds that it is necessary to seize the property or thing in order to prevent its concealment, loss or destruction or its use in committing an offence.


100 Return of seized property to third parties

(1) A person who claims an interest in property (other than a property tracking document) that has been seized under a search warrant issued under Part 3 5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC may apply to a court for an order that the property be returned to the person.

(2) The court must be a court of the State or Territory in which the warrant was issued that has proceeds jurisdiction.

(3) The court must order the head of the authorised officer’s enforcement agency to return the property to the applicant if the court is satisfied that:

(a) the applicant is entitled to possession of the property; and
(b) the property is not proceeds of the relevant crime within the jurisdiction of the ICC; and
(c) the person who is believed or alleged to have committed the relevant crime within the jurisdiction of the ICC has no interest in the property.

(4) If the court makes such an order, the head of the authorised officer’s enforcement agency must arrange for the property to be returned to the applicant.

(5) This section does not apply to property that has been seized because it may afford evidence as to the commission of an Australian criminal offence.


101 Dealing with seized property (other than property tracking documents)
Property covered by this section

(1) Property (other than a property tracking document) must be dealt with in accordance with this section if:

(a) it has been seized under a search warrant issued, pursuant to an authorisation under section 97, under Part 3 5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC; and
(b) it has not been seized under paragraph 99(1)(c).
General rule—property to be returned after 30 days

(2) If, at the end of the period of 30 days after the day on which the property was seized:

(a) a forfeiture order in relation to the property has been registered in a court under Part 11; and
(b) a restraining order has not been made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC;
the head of the enforcement agency whose authorised officer seized the property must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.
Effect of restraining orders being registered or obtained

(3) If, before the end of that period, a restraining order is made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency whose authorised officer seized the property:

(a) if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
(b) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.

(4) If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.
Retaining property despite restraining orders

(5) If, at a time when the property is in the possession of the head of the enforcement agency whose authorised officer seized the property, a restraining order has been made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the head of the enforcement agency retain possession of the property.

(6) If the court is satisfied that the head of the enforcement agency requires the property to be dealt with in accordance with a request under section 81 that the restraining order be obtained, the court may make an order that the head of the enforcement agency may retain the property for so long as the property is so required.
Effect of forfeiture orders by the ICC being registered or obtained

(7) If, while the property is in the possession of the head of the enforcement agency whose authorised officer seized it, a forfeiture order in respect of the property is registered in a court under Part 11, the head of the enforcement agency must deal with the property as required by the forfeiture order.


102 Dealing with seized property tracking documents

(1) An authorised officer who takes possession of a property tracking document under a warrant issued in respect of a crime within the jurisdiction of the ICC may retain the document for a period not exceeding one month pending a written direction from the Attorney General as to how to deal with the document.

(2) Directions from the Attorney General may include a direction that the document be sent to the ICC.

Part 4—Other requests by ICC

Division 15—Other types of assistance


103 Other types of assistance

(1) This section applies if:

(a) the ICC requests any type of assistance referred to in paragraph 7(1)(b); 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.

(2) The Attorney General must refuse the request if the request is prohibited by Australian law and:

(a) the ICC does not modify the request as contemplated by paragraph 3 of article 93 of the Statute and section 53; or
(b) the assistance requested cannot be provided in a way referred to in paragraph 5 of article 93 of the Statute and subsection 11(2) or can only be provided subject to conditions that the ICC does not accept.

(3) If subsection (2) does not apply, the Attorney General is to execute the request by authorising, in writing, the provision of the assistance.

(4) If the Attorney General authorises the provision of the assistance, an appropriate authority is to:

(a) take such action as the authority thinks appropriate in the particular case; and
(b) prepare a written report with respect to the action taken; and
(c) send the report to the Attorney General.

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:

(b) any other type of assistance that is not prohibited by Australian law, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes.

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:

(j) The protection of victims and witnesses and the preservation of evidence;

8.

(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.