Part 8—Protection of Australia’s national security interests

144 How national security issues are to be dealt with

If the Attorney General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.


145 Request for cooperation involving national security

(1) If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.

(2) If, after the procedure specified in sections 148 and 149 is followed, the request for cooperation is not able to be resolved, the Attorney General may refuse the request or decline to authorise the disclosure.


146 Request to disclose information or documents involving national security

(1) This section applies if a person who has been requested to disclose information or documents to the ICC:

(a) refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or
(b) refers the matter to the Attorney General on that ground.

(2) The Attorney General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.

(3) If the Attorney General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.

(4) If, after the procedure specified in sections 148 and 149 is followed, the request for disclosure is not able to be resolved, the Attorney General may refuse the request or decline to authorise the disclosure.


147 Other situations involving national security

(1) If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).

(2) Without limiting subsection (1), if:

(a) the Attorney General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and
(b) after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;
the Attorney General may decline to authorise the disclosure.


148 Consultation with ICC required

The Attorney General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.


149 Procedure where no resolution

(1) If, after the consultation, the Attorney General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.

(2) If:

(a) the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and
(b) the issue of disclosure arises in the circumstances specified in section 145 or 146; and
(c) the Attorney General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and
(d) the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;
the Attorney General must consult 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 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

51 Refusal of assistance

The Attorney-General may refuse a request for cooperation:

in circumstances referred to in Part 8 (which relates to the protection of national security interests); or

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 8—Protection of Australia’s national security interests

144 How national security issues are to be dealt with

If the Attorney-General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.

145 Request for cooperation involving national security

If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney-General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.

If, after the procedure specified in sections 148 and 149 is followed, the request for cooperation is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.

146 Request to disclose information or documents involving national security

(1) This section applies if a person who has been requested to disclose information or documents to the ICC:

refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or

refers the matter to the Attorney-General on that ground.

(2) The Attorney-General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.

(3) If the Attorney-General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.

(4) If, after the procedure specified in sections 148 and 149 is followed, the request for disclosure is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.

147 Other situations involving national security

If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney-General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).

Without limiting subsection (1), if:

the Attorney-General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and

after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;

the Attorney-General may decline to authorise the disclosure.

148 Consultation with ICC required

The Attorney-General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.

149 Procedure where no resolution

If, after the consultation, the Attorney-General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney-General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.

If:

the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and

the issue of disclosure arises in the circumstances specified in section 145 or 146; and

the Attorney-General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and

the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;

the Attorney-General must consult with the ICC.

Article 72
Protection of national security information
1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.
4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different source or in a different form; or
(d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence.
6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests.
7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:
(a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:
(i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

Article 93
Other forms of cooperation
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.