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 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
31 Refusal of surrender
(1) The Attorney-General must refuse a request for surrender of a person if the ICC determines that the case is inadmissible and subsection 33(4), 35(3) or 36(3) applies.
(2) The Attorney-General may refuse a request for surrender of a person if:
(a) there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies; or
(b) there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to different conduct, and subsection 40(3) applies.
(3) The restrictions on extradition specified in the Extradition Act 1988 do not apply in relation to a request for surrender of a person.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
35 Person being investigated or prosecuted in Australia for same conduct
(3) If the ICC determines that the case is inadmissible, surrender must be refused.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
36 Challenges to admissibility in other cases
(3) If the ICC determines that the case to which the request relates is inadmissible, surrender must be refused.
Part 4—Other requests by ICC
Division 3—Restrictions on provision of assistance
51 Refusal of assistance
(1) The Attorney-General must refuse a request for cooperation in circumstances referred to in subsection 142(4) (which relates to third party information that cannot be disclosed).
(2) The Attorney-General may refuse a request for cooperation:
(a) in circumstances referred to in Part 8 (which relates to the protection of national security interests); or
(b) if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or
(c) if there are competing requests from the ICC, and from a foreign country, relating to different conduct, and subsection 60(3) applies.
Part 4—Other requests by ICC
Division 3—Restrictions on provision of assistance
55 Postponement where admissibility challenge
(4) If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.
Part 4—Other requests by ICC
Division 16—Miscellaneous
104 Effect of authorisation to execute request
At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney-General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney-General has previously authorised the execution of the request.
Part 8—Protection of Australia’s national security interests
145 Request for cooperation involving national security
(2) If, after the procedure specified in sections 148 and 149 is followed, the request for cooperation is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.
Part 8—Protection of Australia’s national security interests
146 Request to disclose information or documents involving national security
(1) This section applies if a person who has been requested to disclose information or documents to the ICC:
(a) refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or
(b) refers the matter to the Attorney-General on that ground.
Part 8—Protection of Australia’s national security interests
146 Request to disclose information or documents involving national security
(4) If, after the procedure specified in sections 148 and 149 is followed, the request for disclosure is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.
Part 9—Transportation of persons in custody through Australia
150 Transportation of persons in custody through Australia
(3) The Attorney-General must not authorise the transportation through Australia of a person referred to in paragraph (1)(a) if the Attorney-General reasonably believes that the transportation through Australia would impede or delay the surrender of the person to the ICC.
Part I—Preliminary
8 Refusal of assistance
(1) A request by a foreign country for assistance under this Act shall be refused if, in the opinion of the Attorney General:
(a) the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or
(b) there are substantial grounds for believing that the request has been made with a view to investigating, prosecuting or punishing a person for a political offence; or
(ba) the request relates to a foreign order in relation to an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or
(c) there are substantial grounds for believing that the request was made for the purpose of investigating, prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s race, sex, sexual orientation, religion, nationality or political opinions; or
(ca) there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to torture; or
(d) the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that if it had occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or
(da) both of the following subparagraphs are satisfied:
(i) the request relates to a foreign order in relation to an offence;
(ii) an act or omission constituting the offence, had the act or omission occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or
(e) the granting of the request would prejudice the sovereignty, security or national interest of Australia or the essential interests of a State or Territory.
(1A) A request by a foreign country for assistance under this Act must be refused if:
(a) the request relates to the investigation, prosecution or punishment of:
(i) a person arrested or detained on suspicion of having committed an offence; or
(ii) a person charged with, or convicted of, an offence; and
(b) the offence is one in respect of which the death penalty may be imposed in the foreign country;
unless the Attorney General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
(1B) A request by a foreign country for assistance under this Act may be refused if the Attorney General:
(a) believes that the provision of the assistance may result in the death penalty being imposed on a person; and
(b) after taking into consideration the interests of international criminal co operation, is of the opinion that in the circumstances of the case the request should not be granted.
(2) A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Attorney General:
(a) the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or
(b) both of the following subparagraphs are satisfied:
(i) the request relates to a foreign order in relation to an offence;
(ii) an act or omission constituting the offence, had the act or omission occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or
(c) the request relates to the investigation, prosecution or punishment of a person for an offence in a case where:
(i) the person has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or in Australia or another country; or
(ii) the person has undergone the punishment provided by the law of the foreign country, or of Australia or another country;
in respect of that offence or of another offence constituted by the same act or omission as that offence; or
(d) the provision of the assistance could prejudice an investigation or proceeding in relation to a criminal matter in Australia; or
(e) the provision of the assistance would, or would be likely to, prejudice the safety of any person (whether in or outside Australia); or
(f) the provision of the assistance would impose an excessive burden on the resources of the Commonwealth or of a State or Territory; or
(g) it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted.
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.
Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.