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

13 Confidentiality of request

(1) A person dealing with a request for cooperation must keep the request, and any documents supporting it, confidential except to the extent that it is necessary to disclose the request or such a document for the purpose of executing the request.

(2) If the ICC requests that particular information made available in connection with a request for cooperation be provided and handled in a manner that protects the safety, or physical or psychological well-being, of any victims, potential witnesses and their families, a person dealing with the request must ensure that the information is provided and handled in that manner.

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


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.

Article 54
Duties and powers of the Prosecutor with respect to investigations
3. The Prosecutor may:
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and
(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Article 72
Protection of national security information
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.

Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.