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Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
32 Postponement of execution of request for surrender
(1) The Attorney General may postpone the execution of a request for surrender of a person for a crime within the jurisdiction of the ICC at any time before the person is surrendered if, and only if:
(a) a determination on admissibility of the kind specified in section 33, 35 or 36 is pending before the ICC; or
(b) the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct that constituted the crime, as provided in section 34; or
(c) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.
(2) If the Attorney General postpones the execution of the request, the postponement may be for a reasonable period and may, if the Attorney General considers it desirable, be extended from time to time.
(3) A decision by the Attorney General to postpone the execution of a request:
(a) does not limit or affect the detention of a person under a warrant issued under this Part; and
(b) does not affect the validity of any act done or any warrant issued under this Part before the decision was made.
(4) However, if:
(a) the person applies to an appropriate court to be released; and
(b) the court is satisfied that reasonable notice of the intention to make the application has been given to the Attorney General;
the court may, unless the person is liable to be detained under any other order or other sufficient cause is shown against the release, order the release of the person from the place where the person is detained.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
33 Previous proceedings against person sought
(5) If an admissibility determination is pending, the Attorney General may postpone the execution of a request until the ICC has made its determination.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
36 Challenges to admissibility in other cases
(2) The Attorney General may, pending a determination by the ICC on the admissibility challenge, postpone the execution of a request under this Part in respect of the crime within the jurisdiction of the ICC to which the challenge relates.
Part 4—Other requests by ICC
Division 3—Restrictions on provision of assistance
52 Postponement of execution of request
(1) The Attorney General may postpone the execution of a request for cooperation if, and only if:
(a) the execution of the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, and section 54 applies; or
(b) a determination of admissibility is pending before the ICC, and section 55 applies; or
(c) there are competing requests from the ICC and from a foreign country to which Australia is under an international obligation, and paragraph 56(2)(a) applies; or
(d) the request is for assistance under paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or
(e) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.
(2) Even if subsection (1) applies to a request for cooperation, the Attorney General may decide not to postpone the execution of the request and, in that event, the request must be dealt with in accordance with this Part.
(3) If the Attorney General postpones the execution of the request for cooperation, the postponement may be for a reasonable period and may, if the Attorney General considers it desirable, be extended from time to time.
Part 4—Other requests by ICC
Division 3—Restrictions on provision of assistance
56 Competing requests
(2) For the purposes of subsection (1), the Attorney General may do either or both of the following:
(a) postpone the execution of either of the requests;
Part 4—Other requests by ICC
Division 16—Miscellaneous
104 Effect of authorisation to execute request
At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney General has previously authorised the execution of the request.
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 2—General provisions relating to requests by the ICC for cooperation
12 Request that may raise problems relating to Australia’s international obligations to a foreign country
(4) If, after the consultation, the Attorney-General is not satisfied as mentioned in subsection (2), the Attorney-General must postpone the execution of the request unless and until the foreign country has made the necessary waiver or given the necessary consent.
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 2—General provisions relating to requests by the ICC for cooperation
14 Response to be sent to ICC
(1) The Attorney-General must notify the ICC, without undue delay, of his or her response to a request for cooperation and of the outcome of any action that has been taken in relation to the request.
(2) If the Attorney-General decides, in accordance with the Statute and this Act, to refuse or postpone the assistance requested, wholly or partly, the notice to the ICC must set out the reasons for the decision.
(3) If the request for cooperation cannot be executed for any other reason, the notice to the ICC must set out the reasons for the inability or failure to execute the request.
(4) In the case of an urgent request for cooperation, any documents or evidence produced in response must, if the ICC requests, be sent urgently to it.
(5) Documents or evidence provided or produced in response to a request for cooperation must be sent to the ICC in the original language and form.
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
30 Surrender warrant may take effect at later date
This section applies if, apart from this subsection, the Attorney-General would be required to issue a surrender warrant for a crime within the jurisdiction of the ICC in respect of a person who is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against Australian law.
The Attorney-General may, after consultation with the ICC, do either of the following:
instead of issuing a surrender warrant that has an immediate effect, issue a surrender warrant that is to come into effect when the person ceases to be liable to be detained;
issue a surrender warrant that has a temporary operation in accordance with conditions agreed 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 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
33 Previous proceedings against person sought
(1) This section applies if the person whose surrender is sought alleges to the Attorney-General that:
the case is one to which paragraph 1 of article 20 of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or
the person has been tried by another court for conduct also proscribed under article 6, 7 or 8 of the Statute and the case is not one to which paragraph 3(a) or (b) of article 20 of the Statute applies.
(2) The Attorney-General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.
(3) If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.
(4) If the ICC has determined that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground of the person’s previous conviction, acquittal or trial, as the case may be, in respect of the relevant conduct.
(5) If an admissibility determination is pending, the Attorney-General may postpone the execution of a request until the ICC has made its determination.
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
34 Ongoing Australian investigation or prosecution involving different conduct
(1) This section applies if a request for surrender of a person is made that would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct constituting the crime within the jurisdiction of the ICC to which the request relates.
(2) The Attorney-General may, after consultation with the ICC:
proceed with the execution of the request despite the Australian investigation or prosecution; or
postpone the execution of the request until the Australian investigation or prosecution has been finally disposed of.
(3) Nothing in this section limits or affects section 30 (which allows the Attorney-General to issue a surrender warrant that comes into effect at a later date if a person is serving a sentence for a different offence against Australian law).
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
35 Person being investigated or prosecuted in Australia for same conduct
(1) This section applies if:
(a) a request for surrender of a person is made; and
(b) the request relates to conduct that would constitute an offence under Australian law; and
(c) either:
the conduct is being investigated or prosecuted in Australia;
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
35 Person being investigated or prosecuted in Australia for same conduct
(2) The Attorney-General may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.
An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 3 Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
36 Challenges to admissibility in other cases
The Attorney-General may, pending a determination by the ICC on the admissibility challenge, postpone the execution of a request under this Part in respect of the crime within the jurisdiction of the ICC to which the challenge relates.
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
52 Postponement of execution of request
(1) The Attorney-General may postpone the execution of a request for cooperation if, and only if:
the execution of the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, and section 54 applies; or
a determination of admissibility is pending before the ICC, and section 55 applies; or
there are competing requests from the ICC and from a foreign country to which Australia is under an international obligation, and paragraph 56(2)(a) applies; or
the request is for assistance under paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or
the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies .
(2) Even if subsection (1) applies to a request for cooperation, the Attorney-General may decide not to postpone the execution of the request and, in that event, the request must be dealt with in accordance with this Part.
(3) If the Attorney-General postpones the execution of the request for cooperation, the postponement may be for a reasonable period and may, if the Attorney-General considers it desirable, be extended from time to time.
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
54 Postponement where ongoing Australian investigation or prosecution would be interfered with
54 Postponement where ongoing Australian investigation or prosecution would be interfered with
If the immediate execution of a request for cooperation would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, the Attorney-General may postpone the execution of the request for a period agreed between the Attorney-General and the ICC.
Despite subsection 52(3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.
Before making a decision to postpone the execution of a request, the Attorney-General must consider whether the assistance could be provided immediately subject to conditions.
If the Attorney-General decides to postpone the execution of a request and the ICC requests assistance in the preservation of evidence under paragraph 1(j) of article 93 of the Statute, the Attorney-General must deal with the request in accordance with this Part.
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
55 Postponement where admissibility challenge
This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute in respect of a case to which a request for cooperation relates.
If the ICC has not made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC has made its determination on admissibility.
If the ICC has made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of the request under this section but must deal with it under this Part.
If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.
If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
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
56 Competing requests
(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following:
postpone the execution of either of the requests;
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 16- Miscellaneous
104 Effect of authorisation to execute request
At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney-General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney-General has previously authorised the execution of the request.
Article 94
Postponement of execution of a request in respect of ongoing investigation or prosecution
1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.
2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j).
Article 95
Postponement of execution of a request in respect of an admissibility challenge
Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.