Refusal of ICC request - protection of national security

Australia

Australia - ICC Act 2002 (2016)

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


51 Refusal of assistance

(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

Part 8—Protection of Australia’s national security interests

144 How national security issues are to be dealt with

If the Attorney General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.


145 Request for cooperation involving national security

(1) If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.

(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.


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.

(2) The Attorney General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.

(3) If the Attorney General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.

(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.


147 Other situations involving national security

(1) If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).

(2) Without limiting subsection (1), if:

(a) the Attorney General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and
(b) after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;
the Attorney General may decline to authorise the disclosure.


148 Consultation with ICC required

The Attorney General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.


149 Procedure where no resolution

(1) If, after the consultation, the Attorney General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.

(2) If:

(a) the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and
(b) the issue of disclosure arises in the circumstances specified in section 145 or 146; and
(c) the Attorney General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and
(d) the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;
the Attorney General must consult with 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 3—Restrictions on provision of assistance

51 Refusal of assistance

The Attorney-General may refuse a request for cooperation:

in circumstances referred to in Part 8 (which relates to the protection of national security interests); or

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

Part 8—Protection of Australia’s national security interests

144 How national security issues are to be dealt with

If the Attorney-General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.

145 Request for cooperation involving national security

If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney-General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.

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.

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:

refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or

refers the matter to the Attorney-General on that ground.

(2) The Attorney-General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.

(3) If the Attorney-General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.

(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.

147 Other situations involving national security

If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney-General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).

Without limiting subsection (1), if:

the Attorney-General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and

after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;

the Attorney-General may decline to authorise the disclosure.

148 Consultation with ICC required

The Attorney-General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.

149 Procedure where no resolution

If, after the consultation, the Attorney-General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney-General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.

If:

the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and

the issue of disclosure arises in the circumstances specified in section 145 or 146; and

the Attorney-General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and

the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;

the Attorney-General must consult with the ICC.

Rome Statute

Article 93 Other forms of cooperation

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.