INTERNATIONAL CRIMINAL COURT ACT 2002 - NOTES

INTERNATIONAL CRIMINAL COURT ACT 2002 - NOTES

No. 41, 2002

Compilation No. 10

Compilation date: 24 July 2021

Includes amendments up to: Act No. 78, 2021

Registered: 19 August 2021

About this compilation

This compilation

This is a compilation of the International Criminal Court Act 2002 that shows the text of the law as amended and in force on 24 July 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1--Preliminary

1 Short title

2 Commencement

3 Principal object of Act

4 Definitions

5 Act to bind Crown

6 External Territories

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

7 What constitutes a request for cooperation

8 How requests for cooperation are to be made

9 Urgent requests for cooperation and requests for provisional arrest

10 Execution of requests

11 Consultations with ICC

12 Request that may raise problems relating to Australia's international obligations to a foreign country

13 Confidentiality of request

14 Response to be sent to ICC

15 Attorney-General must take into account ICC's ability to refer matter to Assembly of States Parties or Security Council

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

Division 1--Preliminary

16 Application of Part

Division 2--Documentation to accompany request

17 Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued

18 Documentation for request for arrest and surrender of person already convicted

19 Documentation for request for provisional arrest

Division 3--Arrest of persons

20 Arrest following request for arrest and surrender

21 Arrest following request for provisional arrest

22 Certificate by Attorney-General

23 Remand

24 Procedure following application for bail

25 Release from remand on the Attorney-General's direction

26 Release from remand after certain periods

27 Application for search warrants

Division 4--Surrender of persons

28 Surrender warrants

29 Certificate by Attorney-General

30 Surrender warrant may take effect at later date

31 Refusal of surrender

32 Postponement of execution of request for surrender

33 Previous proceedings against person sought

34 Ongoing Australian investigation or prosecution involving different conduct

35 Person being investigated or prosecuted in Australia for same conduct

36 Challenges to admissibility in other cases

37 Request from ICC and a foreign country relating to same conduct

38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

40 Request from ICC and foreign country relating to different conduct

41 Notification of decision on extradition to foreign country

42 Detention following surrender warrants

43 Content of surrender warrants

44 Execution of surrender warrants

45 Release from remand

46 Effect of surrender to ICC on person's terms of imprisonment

47 Expiry of Australian sentences while under ICC detention

48 Waiver of rule of speciality

Part 4--Other requests by ICC

Division 1--Preliminary

49 Application of Part

Division 2--Documentation to accompany request

50 Documentation for request

Division 3--Restrictions on provision of assistance

51 Refusal of assistance

52 Postponement of execution of request

53 Procedure if assistance precluded under Australian law

54 Postponement where ongoing Australian investigation or prosecution would be interfered with

55 Postponement where admissibility challenge

56 Competing requests

57 Request from ICC and a foreign country relating to same conduct

58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

60 Request from ICC and foreign country relating to different conduct

61 Notification to ICC of decision refusing request by foreign country

62 Requests involving competing international obligations

Division 4--Identifying or locating persons or things

63 Assistance in identifying or locating persons or things

Division 5--Taking evidence or producing documents or articles

64 Attorney-General may authorise taking of evidence or the production of documents or articles

65 Taking of evidence

66 Producing documents or other articles

67 Legal representation

68 Form of certificates

69 Compellability of persons to attend etc.

Division 5A--Providing law enforcement agency material

69A Authorising provision of material obtained by law enforcement agencies

Division 6--Questioning of person being investigated or prosecuted

70 Assistance in questioning persons

71 Procedure where person questioned

Division 7--Service of documents

72 Assistance in arranging service of documents

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

Division 9--Temporary transfer of prisoners to the ICC

74 Prisoners assisting investigation or giving evidence

75 Effect of removal to foreign country on prisoners' terms of imprisonment

Division 10--Examination of places or sites

76 Assistance in examining places or sites

Division 10A--Forensic procedures

76A Authorising application for carrying out of forensic procedures

76B Providing forensic evidence to the ICC

Division 11--Search and seizure

77 Attorney-General may authorise applications for search warrants

78 Applications for search warrants

Division 11A--Stored communications

78A Authorising application for a stored communications warrant

Division 11B--Prospective telecommunications data

78B Authorising an authorisation for the disclosure of prospective telecommunications data

Division 12--Provision of records or documents

79 Facilitating the provision of records or documents

Division 12A--Requests for surveillance devices

79A Authorising applications for surveillance device warrants

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

79B Authorising applications for computer access warrants

Division 13--Protecting victims and witnesses and preserving evidence

80 Protecting victims and witnesses and preserving evidence

Division 14--Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC

Subdivision A--Preliminary

81 Application of Division

81A Authorising applications under the Proceeds of Crime Act

Subdivision B--Restraining orders

82 Applying for and making restraining orders

83 Excluding property from restraining orders

84 When restraining order ceases to be in force

Subdivision C--Production orders relating to crimes within the jurisdiction of the ICC

86 Applying for and making production orders

87 Retaining produced documents

Subdivision D--Notices to financial institutions

88 Giving notices to financial institutions

89 Contents of notices to financial institutions

90 Protection from suits etc. for those complying with notices

91 Making false statements in applications

92 Disclosing existence or nature of notice

93 Failing to comply with a notice

Subdivision E--Monitoring orders relating to crimes within the jurisdiction of the ICC

95 Applying for and making monitoring orders

96 Passing on information given under monitoring orders

Subdivision F--Search warrants relating to proceeds of crime and evidential material

98 Applying for and issuing search warrants

99 Contents of POCA search warrants

99A Seizure of certain property or things found in the course of search

100 Return of seized property to third parties

101 Dealing with certain seized property

102 Dealing with evidential material and certain property or things seized under POCA search warrants

Division 15--Other types of assistance

103 Other types of assistance

Division 16--Miscellaneous

104 Effect of authorisation to execute request

105 Request may relate to assistance sought by defence

106 Prosecutor may execute request

Part 5--Investigations or sittings of the ICC in Australia

107 Prosecutor may conduct investigations in Australia

108 ICC sittings in Australia

109 ICC's powers while sitting in Australia

110 ICC may require witnesses at sittings in Australia to give undertakings as to truthfulness of their evidence

Part 6--Search, seizure and powers of arrest

Division 1--Search warrants

111 When search warrants can be issued

112 Content of warrants

113 The things authorised by a search warrant in relation to premises

114 The things authorised by a search warrant in relation to a person

115 Restrictions on personal searches

116 Warrants may be issued by telephone etc.

117 Formalities relating to warrants issued by telephone etc.

Division 2--Provisions relating to execution of search warrants

118 Availability of assistance and use of force in executing a warrant

119 Copy of warrant to be shown to occupier etc.

120 Specific powers available to officers executing warrants

121 Use of equipment to examine or process things

122 Use of electronic equipment at premises

123 Compensation for damage to electronic equipment

124 Copies of seized things to be provided

125 Occupier entitled to be present during search

126 Receipts for things seized under warrant

Division 3--Stopping and searching conveyances

127 Searches without warrant in emergency situations

128 How a police officer exercises a power to search without warrant

Division 4--Arrest and related matters

129 Power to enter premises to arrest person

130 Use of force in making arrest

131 Persons to be informed of grounds of arrest

132 Power to conduct a frisk search of an arrested person

133 Power to conduct an ordinary search of an arrested person

134 Power to conduct search of arrested person's premises

135 Power to conduct an ordinary search or strip search

136 Rules for conduct of strip search

Division 5--General

137 Conduct of ordinary searches and frisk searches

138 Announcement before entry

139 Offences relating to telephone warrants

140 Retention of things seized

141 Magistrate may permit a thing to be retained

Part 7--Information provided in confidence by third party

142 Disclosure of information provided in confidence by third party

143 Request for Australia's consent to disclosure

Part 8--Protection of Australia's national security interests

144 How national security issues are to be dealt with

145 Request for cooperation involving national security

146 Request to disclose information or documents involving national security

147 Other situations involving national security

148 Consultation with ICC required

149 Procedure where no resolution

Part 9--Transportation of persons in custody through Australia

150 Transportation of persons in custody through Australia

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

151 Assistance with enforcement of orders for reparation to victims

152 Assistance with enforcement of orders imposing fines

153 Registration of order

154 Effect of order

Part 11--Forfeiture of proceeds of international crimes

155 Requests for enforcement of forfeiture orders

156 Registration of order

157 Effect of order

158 Effect on third parties of registration of forfeiture order

159 Forfeiture may be treated as pecuniary penalty order

Part 12--Enforcement in Australia of sentences imposed by ICC

Division 1--Preliminary

160 Australia may agree to act as State of enforcement

161 Withdrawal of agreement to act as State of enforcement

162 Designation of Australia as place for service of sentence

163 Governmental consent to acceptance of designation

164 Acceptance of designation

Division 2--Transfer to Australia of ICC prisoners

165 Issue of warrant for transfer to Australia

166 Warrants for transfer to Australia

167 Cancellation of warrant

Division 3--Enforcement of sentences

168 Sentence enforcement in Australia

169 Duration and nature of enforced sentence

170 Directions about enforcement of sentence

171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney -General

172 ICC prisoner transferred to Australia to be regarded as a federal prisoner

173 Other matters relating to ICC prisoners

174 Pardon, amnesty or commutation of sentences of imprisonment imposed on ICC prisoners transferred to Australia

175 ICC prisoner may apply to be transferred from Australia to a foreign country

176 How ICC prisoner is to be transferred

177 Special rules in certain cases

178 Extradition of escaped ICC prisoner

Part 13--Requests by Australia to ICC

179 Application of Part

180 Request by Attorney-General

Part 14--Miscellaneous

181 Attorney-General's decisions in relation to certificates to be final

182 Arrest of persons escaping from custody or contravening conditions of recognisances

183 Aiding persons to escape etc.

184 Cost of execution of requests

185 Legal assistance

186 Arrangements with States

187 Delegation

188 Regulations

189 Annual report

Schedule 1--Rome Statute of the International Criminal Court

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Endnotes

Endnote 1--About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Abbreviation key--Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history--Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation "(md)" added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation "(md not incorp)" is added to the details of the amendment included in the amendment history.

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history