Part 3—Requests by the ICC for arrest and surrender of persons
Division 3—Arrest of persons
20 Arrest following request for arrest and surrender
(1) Subject to section 22, if:
(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.
(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.
(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.
21 Arrest following request for provisional arrest
(1) Subject to section 22, if:
(a) the Attorney General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) If the Attorney General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.
(3) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.
22 Certificate by Attorney General
The Attorney General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.
23 Remand
(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:
(a) give to the person under arrest a written notice that:
(i) specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that is alleged to constitute that crime; and
(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.
(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.
(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.
(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.
(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:
(a) the gravity of the alleged crimes within the jurisdiction of the ICC;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.
(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.
24 Procedure following application for bail
(1) If an application for bail is made, the Attorney General must notify the ICC.
(2) The Attorney General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.
(3) Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.
(4) If the person is granted bail, the Attorney General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.
(5) This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.
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.
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.
27 Application for search warrants
(1) If:
(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.
(2) If:
(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.
(3) For the purposes of this section, the applicable period is:
(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.
Note: Part 6 deals with search warrants.
Provisional arrest
Arrest
Arrest for ICC proceedings - national procedures
Provisional arrest for ICC proceedings - national procedures
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