Form 9—Notice authorising application for registration of order for reparation

Commonwealth of Australia

International Criminal Court Act 2002

Authorisation under subsection 151(2) to apply for registration of an order for reparation

To the Commonwealth Director of Public Prosecutions:

Because:
(a) the International Criminal Court has:
(i) made an order under article 75 of the Statute of the International Criminal Court requiring reparation by [insert name of person]; and
(ii) requested that the order be enforced as if article 109 of the Statute were applicable; and
(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the Court;
I, , Attorney General of the Commonwealth of Australia, under subsection 151(2) of the International Criminal Court Act 2002, authorise you, the Commonwealth Director of Public Prosecutions, to apply for the registration of the attached order in [insert the name of the Federal Court or the Supreme Court of a specified State].

Part 1—Preliminary

4 Definitions

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC

151 Assistance with enforcement of orders for reparation to victims
(1) This section applies if:
(a) the ICC:
(i) makes an order under article 75 of the Statute requiring reparation; and
(ii) requests that the order be enforced as if article 109 of the Statute were applicable; and
(b) neither the conviction in respect of which the order was made nor the order requiring reparation is subject to appeal or further appeal in the ICC.
(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

152 Assistance with enforcement of orders imposing fines
(1) This section applies if:
(a) the ICC:
(i) orders payment of a fine under paragraph 2(a) of article 77 of the Statute; and
(ii) requests that the order be enforced in accordance with article 109 of the Statute; and
(b) neither the conviction in respect of which the order was made nor the order for payment of the fine is subject to appeal or further appeal in the ICC.
(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, the DPP to apply for the registration of the order in an appropriate court.

153 Registration of order
(1) If the DPP applies to a court for registration of an order in accordance with an authorisation under section 151 or 152, the court must register the order and must direct the DPP to publish notice of the registration in the manner and within the period that the court considers appropriate.
(2) An order is to be registered in a court in the same way as the court registers an order made by another Australian court.
(3) Subject to subsection 154(3), if a copy of an authenticated copy of an order is faxed, emailed or sent by other electronic means, it is taken for the purposes of subsection (2) of this section to be the same as the authenticated copy.

154 Effect of order
(1) An order referred to in section 151 that is registered in a court has effect, and may be enforced, as if it were an order for the payment of money made by the court at the time of the registration.
(2) An order referred to in section 152 that is registered in a court has effect, and may be enforced, as if it were an order imposing a fine made by the court at the time of the registration.
(3) A registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.

Part 11—Forfeiture of proceeds of international crimes

155 Requests for enforcement of forfeiture orders
(1) This section applies if:
(a) the ICC requests the Attorney-General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
(b) the Attorney-General is satisfied:
(i) that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and
(ii) the conviction and the order are not subject to appeal or further appeal in the ICC.
(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order.

156 Registration of order
(1A) An application for the registration of an order in accordance with an authorisation under subsection 155(2) must be to a court with proceeds jurisdiction.
(1) If a proceeds of crime authority so applies to a court with proceeds jurisdiction, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) The proceeds of crime authority must give notice of the application:
(a) to specified persons who the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs.
(3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.
(4) An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.
(5) A copy sent by fax, email or other electronic means of an authenticated copy of an order is taken for the purposes of subsection (4) to be the same as the authenticated copy.
(6) However, a registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.

157 Effect of order
(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and
(b) subparagraph 68(1)(b)(ii) of that Act were omitted.
(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised in writing by the Attorney-General for the purposes of this subsection.
(4) In giving a direction under subsection (3), the Attorney-General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.
(5) Sections 69 and 70, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.

158 Effect on third parties of registration of forfeiture order

Applications by third parties
(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
(a) claims an interest in the property; and
(b) was not convicted of a crime within the jurisdiction of the ICC to which the order relates; may apply to the court for an order under subsection (2).

Orders by the court
(2) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a crime within the jurisdiction of the ICC to which the order relates; and
(b) if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;
the court must make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply
(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.
(4) The court may grant leave if it is satisfied that there are special grounds for doing so.
(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying
(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.
(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters
(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.
(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in such proceedings.

159 Forfeiture may be treated as pecuniary penalty order
(1) This section applies if the Attorney-General is unable to give effect to a forfeiture order.
(2) The Attorney-General must take measures to recover:
(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or
(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney-General’s opinion, is the value of that property.
(3) The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.
(4) Division 4 of Part 2-4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:
(a) references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and
(b) the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and
(c) subsections 140(3) and (5) of that Act were omitted.

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 1—Preliminary

160 Australia may agree to act as State of enforcement
(1) The Attorney-General may notify the ICC that Australia is willing to allow persons who are ICC prisoners to serve their sentences in Australia subject to such conditions (the enforcement conditions) as Australia imposes and are specified in the instrument of notification.
(2) The enforcement conditions that may be imposed include, but are not limited to:
(a) a condition that, unless the Attorney-General determines that it is not necessary in a particular case, the ICC prisoner or his or her representative has consented in writing to the sentence being served in Australia; and
(b) a condition that the appropriate Ministerial consent has been given to the sentence being served in Australia; and
(c) a condition that any appeal or application for revision in respect of the sentence or in respect of the conviction on which it is based has been heard and determined or the period for bringing such an appeal or application has expired; and
(d) a condition that:
(i) on the day of receipt by Australia of the relevant designation under article 103 of the Statute, at least 6 months of the ICC prisoner’s sentence remains to be served; or
(ii) if a shorter period remains to be served on that day, the Attorney-General has determined that, in the
circumstances, transfer of the ICC prisoner to Australia for a shorter period is acceptable.
(3) The Attorney-General may, at any time, notify the ICC that Australia withdraws a condition specified in the instrument of notification referred to in subsection (1).

161 Withdrawal of agreement to act as State of enforcement
(1) If the Attorney-General notifies the ICC under section 160, the Attorney-General may, at any time, withdraw the notification by notifying the ICC that Australia is no longer willing to allow ICC prisoners to serve their sentences in Australia.
(2) Any notification given under subsection (1) does not affect the enforcement of sentences for which the Attorney-General had, before the notification was given, accepted the designation given to Australia by the ICC under section 164.

162 Designation of Australia as place for service of sentence
(1) If:
(a) the Attorney-General has given a notification under section 160 and has not withdrawn the notification under section 161; and
(b) the ICC imposes a sentence of imprisonment on a person convicted of a crime within the jurisdiction of the ICC; and
(c) the ICC designates Australia, under article 103 of the Statute, as the country in which the sentence is to be served; the Attorney-General is to consider whether to accept the designation.
(2) Before accepting the designation, the Attorney-General may request the ICC to provide the Attorney-General with any relevant information that will enable the Attorney-General to assess whether the designation should be accepted.

163 Governmental consent to acceptance of designation
(1) Before accepting the designation, the Attorney-General is to determine the State in which it would be most appropriate for the ICC prisoner to serve the sentence of imprisonment imposed by the ICC and is to seek the consent of the State Minister concerned.
(2) The Attorney-General is to provide the State Minister with particulars of any information that the ICC has given to the Attorney-General.
(3) As soon as possible after receiving the particulars, the State Minister is to inform the Attorney-General in writing whether the State Minister consents to the sentence being served in the State.
(4) If the State Minister refuses to consent to the sentence being served in the State, the Attorney-General may seek the consent of another State Minister to the sentence being served in the State concerned.
(5) If a State Minister consents to the sentence being served in the State, that Minister is to notify the Attorney-General of:
(a) the prison, or hospital or other place, in which the ICC prisoner is to serve the sentence in accordance with this Part in the State; and
(b) any other matters that the State Minister considers relevant to the service of the sentence in the State.

164 Acceptance of designation
(1) The Attorney-General may accept the designation if:
(a) the Attorney-General is satisfied that the ICC has agreed to the enforcement conditions; and
(b) in the case of a prisoner who is not an Australian citizen—the Minister administering the Migration Act 1958 has consented to the sentence of imprisonment being served by the ICC prisoner in Australia; and
(c) a State Minister has consented to the sentence of imprisonment being served by the ICC prisoner in the State.
(2) When the Attorney-General notifies the ICC of the acceptance of the designation, the Attorney-General is also to notify the ICC whether the written consent of the ICC prisoner or his or her representative to the sentence being served in Australia is required and, if such a consent is required, ask the ICC to inform the Attorney-General when it has been obtained.

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 3—Enforcement of sentences

168 Sentence enforcement in Australia
The Attorney-General may determine that a sentence of imprisonment imposed on an ICC prisoner by the ICC be enforced on transfer of the prisoner to Australia under this Part.

169 Duration and nature of enforced sentence
(1) The sentence of imprisonment to be enforced must not be harsher, in legal nature, than the sentence of imprisonment imposed by the ICC.
(2) Without limiting subsection (1), the sentence to be enforced under this Part:
(a) must not be for a longer duration than the sentence imposed by the ICC; and
(b) must not be of a kind that involves a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the ICC.

170 Directions about enforcement of sentence
(1) The Attorney-General may, subject to section 169, give such directions as the Attorney-General considers appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Part.
(2) However, a direction reducing the sentence may only be given in accordance with a decision of the ICC under article 110 of the Statute.
(3) Without limiting subsection (1), directions may be given, in respect of a mentally impaired prisoner, as to any review to be undertaken of his or her mental condition and treatment to be provided to him or her following transfer.
(4) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney-General may inform himself or herself as he or she thinks fit and, in particular, may have regard to the following:
(a) any relevant decisions of the ICC;
(b) any views expressed by any State Minister concerned with the proposed transfer;
(c) any views expressed by prison authorities of any State;
(d) the legal nature of the sentence of imprisonment that might have been imposed if the acts or omissions constituting the crime within the jurisdiction of the ICC had been committed in Australia;
(e) any limitations or requirements arising under the Statute in relation to the way in which a sentence of imprisonment imposed by the ICC may be enforced in Australia.

171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney-General
(1) On transfer of an ICC prisoner to Australia under this Part, no appeal or review lies in Australia against the sentence of imprisonment imposed by the ICC.
(2) No appeal or review lies against a decision of the Attorney-General about the enforcement in Australia under this Part of a sentence of imprisonment imposed by the ICC.

172 ICC prisoner transferred to Australia to be regarded as a federal prisoner
(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:
(a) the sentence is taken to be a federal sentence of imprisonment; and
(b) the prisoner is taken to be a federal prisoner.
(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.
(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.
(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.
(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:
(a) conditions of imprisonment and treatment of prisoners;
(b) classification and separation of prisoners;
(c) removal of prisoners from one prison to another;
(d) removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;
(e) treatment of mentally impaired prisoners;
(f) subject to subsection (6), eligibility for participation in prison programs;
(g) temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);
(h) transfer of prisoners between States.
(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre-release permit scheme (however called) are not applicable to an ICC prisoner who is transferred to Australia under this Part.

173 Other matters relating to ICC prisoners
(1) An ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person.
(2) A Judge of the ICC or a member of the staff of the ICC may visit an ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person except a representative of the prisoner.
(3) The Attorney-General must advise the ICC if an ICC prisoner is transferred from a prison to a hospital or other place, or from a hospital or other place to another hospital or other place.

174 Pardon, amnesty or commutation of sentences of imprisonment imposed on ICC prisoners transferred to Australia
(1) Subject to the prior agreement of the ICC, during the period in which a sentence of imprisonment is served in Australia by an ICC prisoner transferred to Australia under this Part, the prisoner may be pardoned or granted any amnesty or commutation of sentence of imprisonment that could be granted under Australian law if the sentence of imprisonment had been imposed for an offence against an Australian law.
(2) The Attorney-General is to direct, by written notice in the statutory form, that an ICC prisoner must not be detained in custody or otherwise be subjected to detention or supervision in Australia under a sentence of imprisonment imposed by the ICC and enforced under this Part if, during the period in which the sentence is served in Australia:
(a) the ICC notifies the Attorney-General that the ICC prisoner
may be pardoned or granted amnesty or commutation of sentence of imprisonment under an Australian law and the ICC prisoner is so pardoned or granted such amnesty or commutation of sentence of imprisonment; or
(b) the ICC notifies the Attorney-General that the ICC prisoner’s conviction has been quashed or otherwise nullified or that the prisoner has been pardoned or granted commutation of sentence of imprisonment by the ICC.

175 ICC prisoner may apply to be transferred from Australia to a foreign country
An ICC prisoner serving a sentence in Australia may, at any time, apply to the ICC to be transferred from Australia to complete the service of the sentence in a foreign country.

176 How ICC prisoner is to be transferred
(1) This section applies if an ICC prisoner is to be transferred from Australia to a foreign country to complete the service of his or her sentence.
(2) The Attorney-General may issue a warrant, by writing in the statutory form, for the transfer of the prisoner.
(3) The warrant authorises the transfer of the prisoner from Australia to the foreign country to complete the service of his or her sentence.
(4) The warrant must:
(a) specify the name and date of birth of the prisoner; and
(b) state that the prisoner is to be transferred from Australia to the foreign country to complete the service of his or her sentence; and
(c) authorise an escort officer to collect the prisoner from the prison in which he or she is held in custody, or from the hospital or other place where he or she is detained, and transport the prisoner in custody to the foreign country; and
(d) require the superintendent of the prison, or the person in charge of the hospital or other place, to release the prisoner into the custody of the escort officer.

177 Special rules in certain cases
(1) An ICC prisoner serving a sentence in Australia may:
(a) be extradited to a foreign country in accordance with the Extradition Act 1988 either:
(i) after the completion of, or release from, the sentence; or
(ii) during the sentence, but only for a temporary period; or
(b) be required to remain in Australia in order to serve a sentence that he or she is liable to serve under Australian law.
(2) Despite subsection (1):
(a) a person to whom paragraph (1)(a) applies may not, without the prior agreement of the ICC, be extradited to a foreign country; and
(b) a person to whom paragraph (1)(b) applies may not, without the prior agreement of the ICC, be prosecuted or punished in Australia;
for an offence constituted by an act or omission that occurred before the making of the relevant designation referred to in paragraph 162(1)(c).
(3) Subsection (2) does not apply to a person who:
(a) remains voluntarily in Australia for more than 30 days after the date of completion of, or release from, the sentence imposed by the ICC; or
(b) voluntarily returns to Australia after having left it.

178 Extradition of escaped ICC prisoner
(1) If:
(a) an ICC prisoner serving a sentence in a foreign country escapes from custody and is located in Australia; and
(b) the foreign country makes a request to Australia for the person’s surrender in accordance with article 111 of the Statute;
the Extradition Act 1988 applies to the request:
(c) subject to necessary limitations, conditions, exceptions or qualifications; and
(d) as if the request related to a person who had been convicted of an extradition offence (within the meaning of that Act).
(2) If:
(a) an ICC prisoner serving a sentence in Australia escapes from custody and is located in a foreign country; and
(b) the Attorney-General wishes to make a request to that country for the person’s surrender in accordance with article 111 of the Statute;
the Attorney-General may request the person’s extradition under the Extradition Act 1988, and that Act applies:
(c) with any necessary limitations, conditions, exceptions or qualifications; and
(d) as if the request related to a person who had been convicted of an extradition offence (within the meaning of that Act).

Part VI—Proceeds of crime
Division 2—Requests by foreign countries
Subdivision A—Enforcement of foreign orders
34E Enforcement of foreign restraining orders
(1) A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:
(a) was made by the court under the Proceeds of Crime Act at the time of the registration; and
(b) directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.
(2) In particular:
(a) section 288 of that Act applies as if:
(i) the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and
(ii) the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and
(b) section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and
(c) section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.
(3) Divisions 1, 2 and 3 of Part 2 1, section 33, Divisions 5 and 6 of Part 2 1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.
Note: Division 3 of this Part contains further provisions relating to registered foreign restraining orders.