Part 3—Requests by the ICC for arrest and surrender of persons

Division 4—Surrender of persons

37 Request from ICC and a foreign country relating to same conduct
If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney-General:
(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.

38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is a party to the Statute.
(2) Priority must be given to the request from the ICC if:
(a) the ICC has, under article 18 or 19 of the Statute, 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 foreign country in respect of its request for extradition; or
(b) the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.
(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:
(a) the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but
(b) no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.

39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is not a party to the Statute.
(2) Priority must be given to the request for surrender if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
(3) The request for extradition by the foreign country may continue to be dealt with if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
(4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.
(6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.
(7) In making the determination under subsection (6), the Attorney-General must consider all relevant matters, including, but not limited to:
(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if 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 ICC and the foreign country.

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance

57 Request from ICC and a foreign country relating to same conduct
If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney-General:
(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 58 or 59, whether the request for cooperation or the request from the foreign country is to be complied with.

58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is a party to the Statute.
(2) Priority must be given to the request for cooperation if:
(a) the ICC has, under article 18 or 19 of the Statute, made a determination that the case is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country; or
(b) the ICC makes such a determination after receiving notification of the request from the foreign country.
(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:
(a) any preliminary steps required to be taken to give effect to the request from the foreign country may continue to be taken; but
(b) the request may not be complied with unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.

59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is not a party to the Statute.
(2) Priority must be given to the request for cooperation if:
(a) Australia is not under an international obligation to comply with the request from the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
(3) The request from the foreign country may continue to be dealt with if:
(a) Australia is not under an international obligation to comply with the request; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney-General must determine whether the request for cooperation or the request from the foreign country is to be complied with.
(5) In making a determination under subsection (4), the Attorney-General must consider all relevant matters, including, but not limited to:
(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.