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

7 What constitutes a request for cooperation
(1)
(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 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.

Part 4—Other requests by ICC

Division 5A—Providing law enforcement agency material

69A Authorising provision of material obtained by law enforcement agencies
(1) The Attorney-General may authorise, in writing, the provision of material to the ICC if:
(a) the ICC has requested the 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) if the material is or includes lawfully intercepted information or interception warrant information—the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and
(iii) the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency.
(2) The authorisation may:
(a) specify the uses to which the material can be put by the ICC; and
(b) include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the ICC.
(3) Material lawfully obtained in Australia includes:
(a) material obtained from individuals or entities by consent; and
(b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.

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.

Part 4—Other requests by ICC

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.

Part 4—Other requests by ICC

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 10A—Forensic procedures

76A Authorising application for carrying out of forensic procedures
(1) The Attorney-General may authorise, in writing, a constable to apply under Part ID of the Crimes Act 1914 for an order for the carrying out of a forensic procedure on a person if:
(a) the ICC has requested the procedure to be carried out on the person; and
(b) the Attorney-General is satisfied:
(i) that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) that the person is, or is believed to be, in Australia; and
(iii) that the ICC has given appropriate undertakings about the retention, use and destruction of forensic material, or of information obtained from analysing that material; and
(iv) that the ICC has given any other undertakings that the Attorney-General considers necessary; and
(v) unless subsection (2) applies—that the person has been given an opportunity to consent to the forensic procedure and has not consented to it; and
(vi) if subsection (2) applies—of the matters in that subsection; and
(c) in the case of the person being a suspect, the constable is an authorised applicant.
(2) If the person is a child or an incapable person, the matters are:
(a) that either:
(i) the consent of a parent or guardian of the person cannot reasonably be obtained or has been withdrawn; or
(ii) a parent or guardian of the person is a suspect in relation to a crime or an offence to which the investigation or proceeding relates; and
(b) that, having regard to the best interests of the person, it is appropriate to make the authorisation.
(3) In this section: authorised applicant has the same meaning as in subsection 23WA(1) of the Crimes Act 1914. suspect has the same meaning as in subsection 23WA(1) of the Crimes Act 1914.

76B Providing forensic evidence to the ICC
(1) The Attorney-General may direct a constable about how forensic evidence is to be provided to the ICC if:
(a) the Attorney-General gave an authorisation to the constable under subsection 76A(1); and
(b) the forensic evidence resulted from the authorisation.
(2) A direction under subsection (1) is not a legislative instrument.

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.

Division 11A—Stored communications

78A Authorising application for a stored communications warrant
The Attorney-General may authorise, in writing, the Australian Federal Police, or the police force or police service of a State, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if:
(a) the Attorney-General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) there are reasonable grounds to believe that stored communications relevant to the investigation or proceeding are held by a carrier; and
(b) the ICC has requested the Attorney-General to arrange for access to the stored communications.

Division 11B—Prospective telecommunications data

78B Authorising an authorisation for the disclosure of prospective telecommunications data
(1) The Attorney-General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if:
(a) the ICC has requested the Attorney-General to arrange for the disclosure of the information or documents; and
(b) the information or documents come into existence during a period specified by the ICC, and which started on or after the day the request was made; and
(c) the Attorney-General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) the information or documents relate to the fact of a communication passing over a telecommunications system during that period.
(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication.

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 12A—Requests for surveillance devices

79A Authorising applications for surveillance device warrants
(1) The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney-General to arrange for the use of a surveillance device; and
(b) the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney-General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing information obtained as a result of the use of the device; and
(iii) any other matter the Attorney-General considers appropriate.
(2) An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.

Division 12B—Requests for access to data held in computers

79B Authorising applications for computer access warrants
(1) The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney-General to arrange for the access to data held in a computer (the target computer); and
(b) the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney-General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that data obtained as a result of access under the warrant will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing data obtained as a result of access under the warrant; and
(iii) any other matter the Attorney-General considers appropriate.
(2) The target computer may be any one or more of the following:
(a) a particular computer;
(b) a computer on particular premises;
(c) a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).
(3) In this section:
computer has the same meaning as in the Surveillance Devices Act 2004.
data has the same meaning as in the Surveillance Devices Act 2004.
data held in a computer has the same meaning as in the Surveillance Devices Act 2004. eligible law enforcement officer means a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.

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.