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
7 What constitutes a request for cooperation
(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:
(a) assistance in connection with any one or more of the following:
the arrest (including the provisional arrest), and surrender to the ICC, of a person in relation to whom
the ICC has issued a warrant of arrest or a judgment of conviction;
the identification and whereabouts of a person or the location of items;
the taking of evidence, including testimony on oath, and the production of evidence, including expert opinions and reports necessary to the ICC;
the questioning of any person being investigated or prosecuted;
the service of documents, including judicial documents;
facilitating the voluntary appearance of persons (other than prisoners) before the ICC;
the temporary transfer of prisoners to the ICC;
the examination of places or sites;
the execution of searches and seizures;
the provision of records and documents, including official records and documents;
the protection of victims or witnesses or the preservation of evidence;
the identification, tracing, and freezing or seizure, of the proceeds of crimes within the jurisdiction of
the ICC for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(b) any other type of assistance that is not prohibited by Australian law, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes.
(2) This Act does not prevent the provision of assistance to the ICC otherwise than under this Act, including assistance of an informal nature.
8 How requests for cooperation are to be made
(1) Subject to section 9, a request for cooperation is to be made in writing:
to the Attorney-General through the diplomatic channel; or
through the International Criminal Police Organisation or any other appropriate regional organisation.
(2) If a request for cooperation is sent to, or received by, a person to whom the Attorney-General has delegated a power to deal with the request, the request is taken for the purposes of this Act to have been sent to, or received by, the Attorney-General.
9 Urgent requests for cooperation and requests for provisional arrest
A request for cooperation made in urgent cases, and any request for provisional arrest, may be made by using any medium capable of delivering a written record.
If a request is made or sent in the first instance in a manner specified in subsection (1), it must be followed as soon as practicable by a formal request made in accordance with section 8.
10 Execution of requests
A request for cooperation must be executed in accordance with the relevant procedure under the applicable Australian law (as provided in this Act).
If the request states that it should be executed in a particular manner that is not prohibited by Australian law or by using a particular procedure that is not prohibited by Australian law, the Attorney-General must use his or her best efforts to ensure that the request is executed in that manner or by using that procedure, as the case may be.
(3) This section does not affect the operation of subsection 106(1) (which allows the Prosecutor in certain circumstances to execute a request for cooperation to which Part 4 applies) or section 107 (which allows the Prosecutor in certain circumstances to conduct investigations in Australia).
11 Consultations with ICC
(1) The Attorney-General must consult with the ICC, without delay, if, for any reason, there are or may be problems with the execution of a request for cooperation.
(2) Before refusing a request for assistance of a kind mentioned in paragraph 1(l) of article 93 of the Statute, the Attorney-General must consult with the ICC to ascertain whether the assistance requested could be provided:
(a) subject to conditions; or
(b) at a later date or in an alternative manner.
(3) Without limiting the types of conditions under which assistance may be provided, the Attorney-General may agree to information or documents being sent to the Prosecutor on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of generating new evidence.
(4) If the Attorney-General sends information or documents subject to the condition specified in subsection (3), the Attorney-General may subsequently consent to the disclosure of the documents or information for use as evidence under the provisions of Parts 5 and 6 of the Statute and in accordance with the Rules.
12 Request that may raise problems relating to Australia’s international obligations to a foreign country
(1) This section applies where the Attorney-General consults with the ICC because the execution of a request for cooperation may raise problems relating to Australia’s obligations to a foreign country under international law or international agreements as mentioned in article 98 of the Statute.
(2) If, after the consultation, the Attorney-General is satisfied that the execution of the request would not conflict with any of those obligations, the Attorney-General must sign a certificate stating that the execution of the request does not conflict with any of those obligations.
(3) A certificate signed under subsection (2) is conclusive evidence of the matters stated in the certificate.
(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.
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.
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.
15 Attorney-General must take into account ICC’s ability to refer matter to Assembly of States Parties or Security Council
In determining what action to take in relation to a request for cooperation, the Attorney-General must take into account the power of the ICC to refer the matter to the Assembly of States Parties or to the Security Council in accordance with paragraph 7 of article 87 of the Statute if the ICC finds that, contrary to the provisions of the Statute, Australia has failed to comply with the request.
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