Questioning of persons

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:

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

(iv) the questioning of any person being investigated or prosecuted;

Part 4—Other requests by ICC

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.

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 6—Questioning of person being investigated or prosecuted

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 Division 6 Questioning of person being investigated or prosecuted committed a crime within the jurisdiction of the ICC and that he or she has the following rights:

the right to remain silent without such silence being a consideration in the determination of guilt or innocence;

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;

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.

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

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

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:

(c) The questioning of any person being investigated or prosecuted;