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

Division 3—Arrest of persons


23 Remand

(2) The magistrate must satisfy himself or herself whether:

(a) the person is the person specified in the warrant; and
(b) the person was arrested in accordance with this Act; and
(c) section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.

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

Division 3—Arrest of persons


25 Release from remand on the Attorney General’s direction

(1) The Attorney General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

(a) where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or
(b) in any case—after considering the matters mentioned in subsection 23(6), the Attorney General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.

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

Division 3—Arrest of persons


26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

(a) the person was arrested under a warrant issued under subsection 21(2); and
(b) the person is, under this Division, on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

(a) order the release of the person from custody; or
(b) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:

(a) the person must be brought before a magistrate; and
(b) the magistrate must:
(i) order the release of the person from custody; or
(ii) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

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

Division 4—Surrender of persons


45 Release from remand

(1) If:

(a) a surrender warrant has been issued in relation to a person; and
(b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and
(c) the person applies to the Supreme Court of the State or Territory in which the person is in custody; and
(d) reasonable notice of the intention to apply has been given to the Attorney General;
the Court must, subject to subsection (2), order that the person be released from that custody.

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 3—Arrest of persons

23 Remand

(2) The magistrate must satisfy himself or herself whether:

the person is the person specified in the warrant; and

the person was arrested in accordance with this Act; and

section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21 .

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 3—Arrest of persons

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

(1) The Attorney-General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person

remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or

in any case—after considering the matters mentioned in subsection 23(6), the Attorney-General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney-General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.

26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

the person was arrested under a warrant issued under subsection 21(2); and

the person is, under this Division, on remand 60 days after the day on which the person was arrested; and a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:
the person must be brought before a magistrate; and

the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;

as the case requires.

26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

the person was arrested under a warrant issued under subsection 21(2); and

the person is, under this Division, on remand 60 days after the day on which the person was arrested; and a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:
the person must be brought before a magistrate; and

the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;

as the case requires.

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

32 Postponement of execution of request for surrender

(4) However, if:

the person applies to an appropriate court to be released; and

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.

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

45 Release from remand

(1) If: a surrender warrant has been issued in relation to a person; and

the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and

the person applies to the Supreme Court of the State or Territory in which the person is in custody; and

reasonable notice of the intention to apply has been given to the Attorney-General;

the Court must, subject to subsection (2), order that the person be released from that custody.

Article 92
Provisional arrest
3. A person who is provisionally arrested may be released from custody if the requested State
has not received the request for surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the
person may consent to surrender before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed to surrender the person to the
Court as soon as possible.