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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
INTERNATIONAL CRIMINAL COURT BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
OUTLINE
The purpose of this Bill is to allow Australia to comply with the
international obligations that it will incur upon ratification of the ICC
Statute.
The ICC Statute was adopted by a Conference of Plenipotentiaries
in Rome on 17 July 1998 and has been signed by 139 countries – Australia
signed the Statute on 9 December 1998. The Statute establishes a permanent
International Criminal Court to try individuals accused of “the most
serious crimes of concern to the international community as a whole”,
namely genocide, crimes against humanity and war crimes (Article 5). The ICC
will also try individuals accused of the crime of aggression, once the States
that are parties to the Statute agree upon a definition of aggression. If the
Statute is amended to include the crime of aggression, a State Party may decline
to accept it, in which case the ICC may not exercise jurisdiction over it in
respect of the nationals of that State or in respect of crimes committed in that
State’s territory. The Statute will enter into force on 1 July
2002.
The Statute contains obligations on State Parties to it to
“cooperate fully with the Court in its investigation and prosecution of
crimes within the jurisdiction of the Court” (Article 86). The
obligations to cooperate with the ICC are contained in Part 9 of the Statute,
and include, amongst other things, requests for the:
• arrest or
provisional arrest of a person and the surrender of a person to the ICC;
• identification and location of a person or items;
• taking
or producing evidence, including expert reports;
• questioning any
person being investigated or prosecuted;
• service of
documents;
• facilitating people to voluntarily appear before the
ICC;
• temporary transfer of prisoners to the
ICC;
• examination of places or sites;
• execution of searches
and seizures
• provision of records and
documents;
• protection of victims or
witnesses;
• preservation of evidence; or
• assistance with
the forfeiture of property related to crimes within the jurisdiction of the
ICC.
This Bill contains provisions allowing Australia to comply with its international obligations on ratification by putting in place procedures to comply with requests for assistance or the enforcement of sentences.
The Bill also contains provisions to ensure Australian sovereignty is protected.
In particular, it affirms the primacy of Australian law and declares that no person can be arrested on a warrant issued by the Court or surrendered to the Court without the consent of the Attorney General. Review of the Attorney-General’s discretion will be strictly limited to prerogative remedies within constitutional limits
Part 2 of the Bill contains general provisions governing requests for cooperation by the ICC.
Part 3 of the Bill deals with requests from the ICC for the arrest and
surrender of persons, including that the Attorney-General must not issue a
notice allowing for the arrest, or provisional arrest of a person nor a warrant
for a person’s surrender for a crime unless the Attorney-General has in
his or her absolute discretion, signed a certificate that it is appropriate to
do so.
Part 4 of the Bill deals with other types of requests from the
ICC, such as identifying or locating persons or things; taking evidence; serving
documents; examining sites; protecting victims and witnesses and preserving
evidence; identifying, freezing and seizing tainted property.
Part 5 of
the Bill authorises the ICC to conduct investigations or hearings in Australia
and sets out its powers while in Australia.
Part 6 of the Bill deals with
searches, seizures and arrests.
Part 7 of the Bill sets out how Australia
is to deal with a request from the ICC for information that we have received in
confidence from a third party.
Part 8 of the Bill sets out the procedures
for protecting Australia’s national security interests.
Part 9 of
the Bill deals with the transportation through Australia of persons in
custody.
Part 10 of the Bill deals with the enforcement in Australia of
any fines or reparation orders made by the ICC.
Part 11 of the Bill deals
with the forfeiture of the proceeds of international crimes.
Part 12 of
the Bill deals with the enforcement in Australia of sentences imposed by the
ICC, including the transfer of prisoners to Australia.
Part 13 of the
Bill sets out the procedure for Australia to make a request to the
ICC.
Part 14 of the Bill covers miscellaneous matters, including dealing
with costs or requests and creating offences against this Bill.
FINANCIAL IMPACT STATEMENT
The Bill is expected to have little impact on Commonwealth expenditure or
revenue in the short term. The longer term impact of the Bill will depend on
how many active prosecutions and investigations the ICC undertakes, which will
determine the number and nature of requests for assistance that Australia
receives from the ICC and on whether the ICC ever sits in Australia. These
resource implications cannot be quantified at this stage, however it is expected
that they can be met from existing resources.
It is considered highly
unlikely that the ICC would ever sit in Australia.
The purpose of this Bill is to enable Australia to ratify the Statute
of the International Criminal Court. If Australia ratifies the Statute, it will
have an obligation to make annual financial contributions to the running of the
Court. The contribution for Australia in the first year is expected to be
approximately $2.5 million.
List of Abbreviations
|
ICC
|
International Criminal Court
|
|
Interpol
|
International Criminal Police Organisation
|
|
Statute
|
Rome Statute of the International Criminal Court
|
Clause 1: Short title
This clause provides that the short title
of this Act is the International Criminal Court Act 2002.
Clause 2: Commencement
This clause provides that Part 1 of
the Act commences on the day on which the Act receives Royal Assent.
Parts 2 to 14 of the Act commence on a day to be fixed by Proclamation,
but that date shall not be prior to the day on which the Statute enters into
force in Australia. If Parts 2 to 14 of the Act have not commenced within 1
month of the Statute entering into force in Australia, then they commence on the
first day after the end of the 1 month period.
This Act must come into
force promptly after the Statute enters into force in Australia to allow
Australia to comply with its international legal obligations.
If Parts 2
to 14 of the Act are to commence on a day before sections 3 to 338 of the
Proceeds of Crime Bill 2002 commence, then Division 14 of Part 4 and Part
11 of this Act will not commence until immediately after sections 3 to 338 of
the Proceeds of Crime Bill 2002 commence. This is necessary because
Division 14 of Part 4 and Part 11 of this Act refer to and rely on provisions of
the Proceeds of Crime Bill 2002.
Clause 3: Complementarity of
jurisdictions
The Statute establishes the principle of
complementarity, meaning that the ICC only has jurisdiction in a case where a
State is unwilling or unable to genuinely investigate or prosecute a crime.
States that are willing and able to do so maintain the primary right to exercise
their jurisdiction. This clause reiterates that Parliament’s intention is
that the jurisdiction of the ICC is to be complementary to the jurisdiction of
Australia, and that this Act and Australia’s ratification of the ICC
Statute does not affect the primacy of Australia’s right to try crimes
which are within the jurisdiction of the ICC. These crimes will also be crimes
in Australian law as a result of the enactment of the International Criminal
Court (Consequential Amendments) Act 2002.
This clause defines various terms used in the Act.
This clause confirms that the Act binds the Crown in right of the
Commonwealth and each of the States.
This clause extends the Act to each external Territory of
Australia.
This clause defines a request for cooperation as a request
by the ICC for assistance with any of the following, in connection with an
existing or proposed investigation or prosecution:
• Arrest
(including provisional) and surrender of a person pursuant to an ICC warrant or
judgement;
• Identification and location of a person or
items;
• Taking or producing evidence, including expert
reports;
• Questioning any person being investigated or
prosecuted;
• Service of documents;
• Facilitating people to
voluntarily appear before the ICC;
• Temporary transfer of prisoners to
the ICC;
• Examination of places or sites;
• Execution of
searches and seizures
• Provision of records and
documents;
• Protection of victims or
witnesses;
• Preservation of evidence;
• Assistance with the
forfeiture of property related to crimes; and
• Any other assistance
that is not prohibited by law to assist in the investigation and prosecution of
crimes in the ICC and enforcement of orders.
Subclause (2) confirms that
the Act does not prevent informal assistance being given outside the terms of
the Act.
This clause provides that a request for cooperation from the ICC must be
made in writing to the Attorney-General (or to a person that the
Attorney-General has authorised to deal with requests for cooperation) through
the diplomatic channel, Interpol or another appropriate regional
organisation.
This clause provides that an urgent request for cooperation or a request
for the provisional arrest of a person can be made in any written form. Such a
request must be followed by a formal request as set out in clause 8 as soon as
practicable.
This clause provides that any request for cooperation must be carried out
in accordance with procedure set out in Australian law (namely this Act), and
that if the request asks that it be executed in a manner that is not prohibited
by Australian law then the Attorney-General must use his or her best efforts to
execute the request in that manner.
This clause does not apply to
clauses 106(1) or 107 of this Act, which allow the Prosecutor to execute certain
requests for cooperation or conduct investigations in Australia.
This clause provides that if there is, or might be, a problem with
executing a request for cooperation then the Attorney-General must consult with
the ICC without delay.
The Attorney-General cannot refuse a request for
cooperation under Article 93(1) of the Statute (requests other than for the
arrest, provisional arrest or surrender of a person) unless the Attorney-General
has consulted with the ICC to see whether the assistance could be provided
later, in another manner, or subject to conditions. One of these conditions
could be that information is kept confidential and only used to generate new
evidence, but the clause allows the Attorney-General to waive any conditions at
a later date.
Clause 12: Request that may raise problems relating to
Australia’s international obligations to a foreign country
This
clause sets out the procedure that the Attorney-General must follow if he or she
believes that a request for cooperation will conflict with Australia’s
obligations to another country.
The Attorney-General must consult with
the ICC. If the Attorney-General then believes that executing the request will
not conflict with Australia’s obligations to any other country Australia
will comply. If the Attorney-General believes that executing the request will
conflict with Australia’s obligations to another country then Australia
will not comply with the request without the consent of that other
country.
This clause provides that a request for cooperation and any supporting
documents must be kept confidential, unless the request cannot be executed
without disclosing some of the information.
If the ICC asks that
information be handled in a certain manner to protect the safety or well-being
of a victim, potential witness or their family, then the information must be
handled in that manner.
The purpose of this clause is to ensure that the Attorney-General
promptly informs the ICC of the outcome of any request for cooperation, and
informs the ICC of the reasons if Australia has postponed or refused the
request, or has otherwise been unable to comply with it.
It also
provides that documents or evidence that are sent to the ICC are sent in their
original language and form, and that documents or evidence that are in response
to an urgent request for cooperation must be sent to the ICC
urgently.
Clause 15: Attorney-General must take into account
ICC’s ability to refer matter to Assembly of States Parties or Security
Council
This clause provides that when the Attorney-General is
considering a request for cooperation, the Attorney-General must take into
account the fact that if the ICC finds that Australia has refused to comply with
a request for cooperation then the ICC may refer the issue to the United Nations
Security Council or the Assembly of States Parties.
Part 3 – Requests by the ICC for arrest and surrender
of persons
Division 1 – Preliminary
Clause 16: Application of Part
This clause provides that
this Part of the Act (Part 3) applies to a request for the arrest and surrender
of a person or the provisional arrest of a person.
Other requests for
cooperation are dealt with in Part 4.
Clause 17: Documentation for request for arrest and surrender of
person for whom warrant of arrest has been issued
This clause sets
out the information that is required to accompany a request from the ICC to
Australia for the arrest and surrender of a person for whom a warrant of arrest
has been issued. Further documents may be added by regulations. The
information required by this clause is consistent with Australia’s
extradition policy, as set out in the Extradition Act 1988 and
regulations made under that Act.
Clause 18: Documentation for request
for arrest and surrender of person already convicted
This clause sets
out the information that is required to accompany a request from the ICC to
Australia for the arrest and surrender of a person who has already been
convicted by the ICC.
Clause 19: Documentation for request for
provisional arrest
This clause sets out the information that is
required to accompany a request from the ICC to Australia for the provisional
arrest of a person.
This clause provides the process by which a magistrate is to issue a
warrant for the arrest of a person at the direction of the Attorney-General, if
a request from the ICC for that person’s arrest and surrender complies
with Division 2 (clauses 17 or 18). The Attorney-General may give the notice to
the magistrate directing the magistrate to issue the arrest warrant if the
Attorney-General has issued a certificate under clause 22.
This clause provides the process by which a magistrate is to issue a
warrant for the arrest of a person at the direction of the Attorney-General, if
a request from the ICC for that person’s provisional arrest complies with
Division 2 (clause 19). The Attorney-General may give the notice to the
magistrate directing the magistrate to issue the arrest warrant if the
Attorney-General has issued a certificate under clause 22.
Clause 22:
Certificate by Attorney-General
This clause provides that the
Attorney-General must not direct the magistrate to issue an arrest warrant
unless the Attorney-General has first signed a certificate that it is
appropriate to arrest that person. This clause ensures that the
Attorney-General retains the absolute discretion to determine when a person in
Australia is arrested on behalf of the ICC. An example of when the
Attorney-General might refuse to direct that a magistrate issue an arrest
warrant is where Australia was willing and able to prosecute that
person.
This clause provides the process for the remand of a person arrested
under a warrant issued under clauses 20 or 21.
Subclause (1) provides
that the arrested person must be given a written notice setting out the crime
that they are charged with and the conduct that is alleged to form the basis for
that charge.
The person must be brought before a magistrate, and
subclause (2) states that the magistrate must be satisfied that the arrested
person is the person in the warrant and that they were arrested in accordance
with the Act, including being told why they are being arrested.
If the
magistrate is not satisfied of the matters set out above, then the person must
be released (subclause (3)). Otherwise, the magistrate must remand the arrested
person in custody unless there are special circumstances to release them on bail
(subclauses (4) and (5)).
This clause provides the process to be followed if an arrested person
applies for bail, whereby the Attorney-General must notify the ICC, and the
magistrate must consider any recommendation by the ICC.
This clause sets out the circumstances in which the Attorney-General must
direct a magistrate to release an arrested person from custody or from the
conditions of bail. The Attorney-General also retains a general discretion to
release a person from remand if the Attorney-General believes for any reason
that the remand should cease. This could be used to release a person from
remand if they will not be surrendered. This clause does not prevent a person
who has been released from being re-arrested if the ICC sends a new request for
their arrest to Australia.
This clause provides for a magistrate to review the remand of a person
who has been provisionally arrested (clause 21) if the Attorney-General has not,
within 60 days of their arrest,
issued a notice under clause 20(1) stating
that a request for arrest and surrender from the ICC has been received.
This clause provides the grounds on which a police officer may apply for
a search warrant in relation to a crime within the jurisdiction of the ICC and
the procedure which the officer must follow to obtain a search warrant. Part 6
of this Act deals with search warrants in detail.
This clause provides that the Attorney-General may issue a surrender
warrant for any person remanded under Division 3, except where this Division
provides otherwise. A surrender warrant authorises the surrender of the person
named in the warrant to the ICC.
Clause 29: Certificate by
Attorney-General
This clause provides that the Attorney-General must
not issue a surrender warrant unless the Attorney-General has first signed a
certificate that it is appropriate to surrender that person. This clause
ensures that the Attorney-General retains the absolute discretion to determine
when a person in custody in Australia is to be surrendered to the ICC. An
example of when the Attorney-General might refuse to surrender a person is where
Australia was willing and able to prosecute that person.
This clause provides that where a person has been sentenced for a
different crime in Australia and is serving that sentence in prison, the
Attorney-General may either issue a surrender warrant that takes effect when the
person is released from prison, or issue a temporary surrender warrant,
after consulting with the ICC.
This clause provides that in certain circumstances the Attorney-General
can refuse to surrender a person.
The Attorney-General must refuse to
surrender a person if the ICC determines that the case against the person is
inadmissible because the person has already been tried for the same crime
(clause 33(4)), because the person is currently being investigated or prosecuted
for the same crime (clause 35(3)) or that the case is inadmissible for any other
reason (clause 36(3)).
The Attorney-General also has a discretion to
refuse to surrender a person if there is a competing request from another
country that is not a party to the Statute to extradite that person (clauses 39
and 40).
This clause sets out the circumstances in which the Attorney-General can
delay the surrender of a person. It also clarifies the effect of such a delay,
and the procedure for a person whose surrender has been delayed to apply to be
released from detention.
This clause sets out the procedure to be followed if a person claims that
they have already been tried, by the ICC or by a genuine and impartial national
court, for the same crime or conduct that they are currently charged
with.
If the surrender of a person would interfere with an Australian
investigation or prosecution of different conduct (from the conduct that the ICC
is investigating or prosecuting), this clause gives the Attorney-General the
discretion to either proceed with the surrender of the person or delay the
surrender until the Australian proceedings have been completed.
Clause
35: Person being investigated or prosecuted in Australia for the same
conduct
This clause sets out the procedure relating to the surrender
of a person if Australia challenges the jurisdiction of the ICC to try that
person because Australia is investigating or trying that person for the same
crime or has already investigated the person and has decided not to prosecute
them.
Clause 36: Challenges to admissibility in other
cases
This clause provides that if there is any other challenge to
the jurisdiction of the ICC, the Attorney-General may postpone the surrender of
the person until the ICC has resolved the challenge to
jurisdiction.
Clauses 37, 38 and 39: Request from ICC and a foreign
country relating to same conduct
These clauses set out the procedure
to be followed by the Attorney-General where a foreign country and the ICC
request the extradition or surrender of a person for the same conduct or crime.
The process differs depending on whether the foreign country is a party to the
Statute (clause 38) or not (clause 39).
The Attorney-General must
notify the ICC and the foreign country of the fact that they have both sought
the extradition or surrender of the person for the same conduct (clause
37).
If the foreign country is a party to the Statute then clause 38
applies. This provides that the ICC must make an expedited determination on
whether the case is admissible, taking into account the fact that the foreign
country is also investigating or prosecuting the same conduct. If the ICC
determines that the case is admissible, then the person must be surrendered to
the ICC. If the ICC determines that the case is not admissible, or does not
make an expedited determination, then the person may be extradited (subject to
the Extradition Act 1988).
If the foreign country is not a party
to the Statute then clause 39 applies. If Australia is not under an
international obligation to extradite the person, then the same process as in
clause 39 applies. If Australia is under an international obligation to
extradite the person, then the Attorney-General must decide whether to surrender
the person to the ICC or extradite the person to the foreign country. In making
that decision, the Attorney-General must take into account the timing of the
requests, the interest of the foreign country in the crime and the possibility
of later surrender by the foreign country to the ICC.
Clause 40:
Request from ICC and a foreign country relating to different
conduct
This clause set out the procedure to be followed by the
Attorney-General where a foreign country and the ICC request the extradition or
surrender of a person for different conduct or crimes. The process is very
similar to that in clause 39.
If Australia is not under an
international obligation to extradite the person, then priority must be given to
the request from the ICC. If Australia is under an international obligation,
then the Attorney-General must decide whether to surrender the person to the ICC
or extradite the person to the foreign country. In making that decision, the
Attorney-General must take into account the factors that are set out in clause
39, plus the relative seriousness of the conduct that the requests for surrender
and extradition relate to.
Clause 41: Notification of decision on
extradition to foreign country
This clause provides that if Australia
decides to extradite a person to a foreign country rather than surrender that
person to the ICC for the same crime or conduct, and the extradition does not
proceed, then the Attorney-General must inform the ICC. This is to allow the
ICC to make another request for the surrender of that person.
Clause
42: Detention following surrender warrants
This clause provides that
if a person is on bail when a surrender warrant is issued, that person must then
be remanded in custody to allow the warrant to be executed.
Clause 43:
Contents of surrender warrants
This clause sets out the information
that must be contained in a surrender warrant.
Clause 44: Execution of
surrender warrants
This clause imposes an obligation to execute the
surrender warrant according to its terms.
Clause 45: Release from
remand
This clause gives a person who is remanded in custody because
a surrender warrant has been issued the right to apply to a Supreme Court to be
released 21 days after the warrant could have been executed. If the court is
satisfied that there is a reasonable cause for the delay in executing the
warrant, including danger to the persons life or health, then it shall not order
the release of the person.
Clauses 46 and 47: Effect of surrender to
ICC on person’s terms of imprisonment and Expiry of Australian sentences
while under ICC detention
These clauses apply to persons who were
serving sentences in prison in Australia for unrelated offences and are
surrendered to the ICC.
Clause 46 sets out that time spent in detention
in Australia in relation to a surrender warrant, and time spent in detention by
the ICC will count as time served towards the Australian sentence. If the
person is convicted of a crime by the ICC, time spent serving a sentence imposed
by the ICC does not count as time served towards the Australian sentence.
Similar rules for Australian prisoners who are temporarily transferred to the
ICC to assist with an investigation or give evidence are contained in clause
75.
Clause 47 states that if a person’s Australian sentence expires
while the person is in detention under the ICC, the Attorney-General must
immediately inform the ICC.
Clause 48: Waiver of rule of
speciality
If a person has been surrendered to the ICC by Australia
for certain conduct or crimes, the ICC cannot prosecute that person for
different conduct or crimes without the consent of Australia. This clause gives
the Attorney-General the power to give this consent, and the power to ask for
further information from the ICC to assist in deciding whether to give the
consent.
Part 4 – Other requests by ICC
Division
1 – Preliminary
Clause 49: Application of this Part
This clause provides
that Part 4 of the Act applies to any request for cooperation by the ICC that is
not a request for the arrest and surrender of a person or the provisional arrest
of a person (such requests are dealt with in Part 3).
Division 2 – Documentation to accompany request
Clause 50: Documentation for request
This clause sets out
the information that is required to accompany a request for cooperation from the
ICC to Australia. Additional information is specified if the request is for the
transit of a person through Australia.
Clause 51: Refusal of assistance
This clause sets out the
circumstances in which the Attorney-General can refuse a request for assistance
by the ICC. This clause does not deal with refusal of a request for arrest and
surrender or request for provisional arrest – those requests are dealt
with under Part 3.
The Attorney-General must refuse a request by the ICC
for Australia to provide information that Australia received on a confidential
basis from a foreign country or organisation if that foreign country or
organisation is not a party to the Statute and does not consent to the
information being disclosed. This situation is covered in clause
142.
The Attorney General may also refuse a request for cooperation in
the interests of national security (see Part 8 of this Act) or if there is a
competing request from a foreign country (clauses 59 and 60).
Clause
52: Postponement of execution of request
This clause sets out the
circumstances in which the Attorney-General may postpone the execution of a
request for assistance by the ICC.
Clause 53: Procedure if assistance
precluded under Australian law
Clause 11 of this Act requires the
Attorney-General to consult with the ICC if there is any problem with executing
a request for cooperation.
This clause provides that if a request for
cooperation is initially prohibited in Australia, but after consultation between
the Attorney-General and the ICC the request is modified so that it can be
carried out in Australia (i.e. under this Act), then the Attorney-General will
then consider the modified request.
Clause 54: Postponement where
ongoing Australian investigation or prosecution would be interfered
with
This clause allows the Attorney-General to postpone complying
with a request for cooperation if it would interfere with an ongoing Australian
action relating to different conduct. The Attorney-General must first consider
whether the assistance could be provided immediately, but subject to conditions.
If it cannot, the Attorney-General must agree to the period of the postponement
with the ICC, and it must be no longer than is necessary to complete the
domestic prosecution or investigation. If the ICC then requests the
preservation of evidence, then the Attorney-General must consider that request.
Such a request would also be made under this Part.
Clause 55:
Postponement where admissibility challenge
This clause sets out the
manner in which the Attorney-General is to deal with a request for cooperation
in a variety of circumstances where the ICC is considering a challenge to the
admissibility of the case to which the request for cooperation
relates.
Clauses 56, 57, 58, 59 and 60: Competing requests for
cooperation from the ICC and a foreign country
These clauses set out
the manner in which the Attorney-General must deal with a situation where a
foreign country and the ICC both request cooperation from Australian
authorities. The Attorney-General must first consult with the ICC and attempt
to comply with both of the requests, even if this requires the Attorney-General
to delay or attach conditions to either or both of the requests.
If the
Attorney-General cannot comply with both requests, the manner in which the
requests must be dealt with depends on whether the foreign country is a party to
the ICC Statute and whether the requests for cooperation relate to the same
conduct or to different conduct.
Clause 61: Notification to ICC of
decision refusing request by foreign country
This clause sets out
that if Australia has notified the ICC that it has received a competing request
from a foreign country, and the ICC has determined that the case is not
admissible, if Australia later refuses the request for cooperation from the
foreign country the Attorney-General must inform the ICC of this
refusal.
Clause 62: Requests involving competing international
obligations
This clause provides that if the subject of a request for
cooperation is under the control of a foreign state or an international
organisation, then the Attorney-General must inform the ICC. This will allow
the ICC to approach that other state or organisation to request its consent for
the cooperation to be given.
Division 4 – Identifying or locating persons or things
Clause 63: Assistance in identifying or locating persons or
things
This clause covers a situation where the ICC requests
assistance from Australia in identifying and/or locating a person or a thing,
and the Attorney-General is satisfied that the person or thing may be in
Australia and that this relates to an investigation or proceeding in the ICC.
In these circumstances, the Attorney-General shall authorise the
“appropriate authority” to identify and/or locate the person or
thing and report back to the Attorney-General.
“Appropriate
authority” is defined in clause 4, and is an officer of the Commonwealth
or an Australian Federal Police officer or a State police officer.
Division 5 – Taking evidence or producing documents or articles
Clause 64: The Attorney-General may authorise the taking evidence or
the production of documents or articles
This clause covers a
situation where the ICC requests assistance from Australia in taking evidence or
obtaining a document or item in Australia. The Attorney-General must be
satisfied that the evidence can be taken or articles produced in Australia and
that this relates to an investigation or proceeding in the ICC. In these
circumstances, the Attorney-General shall authorise in writing the taking of the
evidence or production of the documents or items and the sending of them to the
ICC.
Clause 65: Taking of evidence
This clause sets out the
procedure to be followed by a magistrate in taking evidence. The magistrate
must record the evidence on writing or in any other form that the magistrate
considers appropriate. For example, if the evidence was taken by video link,
then the magistrate might decide to record the evidence by video rather than by
written transcript.
Clause 66: Producing documents or other
articles
This clause sets out the procedure to be followed by a
magistrate in the production of documents or other articles. Where documents
are produced, the magistrate may send copies of the documents that the
magistrate has certified to be true copies to the Attorney-General rather than
the originals.
Clause 67: Legal representation
This clause
allows a person that an ICC investigation or proceeding relates to or their
legal representative to be present at the taking of evidence in Australia under
clause 65, but they do not have to be present.
In proceedings for the
taking of evidence or the production of documents or other articles in Australia
(clauses 65 and 66), the magistrate may allow:
• the ICC or
prosecutor;
• the person who the ICC investigation or proceeding
relates to; or
• the person who is giving the evidence or producing
the documents or other articles
to be legally represented. The fact that a
magistrate may allow a person to be legally represented does not oblige
the magistrate to inform the person of the proceeding or allow the person or
their legal representative to be present.
Clause 68: Form of
certificates
This clause requires a certificate that is sent by the
magistrate to the Attorney-General under clauses 65 or 66 to state who was
present when the evidence was taken or the documents or other articles were
produced, including any legal representatives.
Clause 69:
Compellability of persons to attend etc.
This clause allows the
magistrate in a hearing under Division 5 to exercise the same powers to compel a
person to give evidence or produce documents as they could in a domestic
criminal proceeding in that State or Territory. Witnesses therefore have the
same obligations and protection that they would have in domestic
proceedings.
The person who is being investigated or prosecuted in the
ICC cannot be forced to give evidence, and any other person cannot be required
to answer a question or produce a document or article unless the person could be
required to do so by the ICC.
Division 6 – Questioning of person being investigated or prosecuted
Clauses 70 and 71: Assistance in questioning persons and Procedure
where a person questioned
Clause 70 sets out the procedure to be
followed where the ICC requests assistance in questioning a person who is being
investigated or prosecuted by the ICC and that person may be in
Australia.
Clause 71 specifies that before a person is questioned under
clause 70, they must be informed that they are being investigated or prosecuted
for a crime under the Statute and of their rights to remain silent, to have
legal representation present during questioning and that if they cannot afford
legal assistance then it may be provided for them. This clause also confirms
that a person who is being investigated or prosecuted by the ICC cannot be
forced to answer a question.
Division 7 – Service of documents
Clause 72: Assistance in arranging service of
documents
This clause sets out the procedure where the ICC requests
assistance in serving a document relating to an investigation or proceeding by
the ICC on a person who may be in Australia. These documents can include a
summons to a witness or summons to a suspect.
This clause also creates
an offence of failing to comply with a summons, to a witness or a suspect, which
is served under this clause. The maximum penalty for this offence is
imprisonment for up to 12 months.
Division 8 – Facilitating the voluntary appearance of persons (other than prisoners) as witnesses or experts before the ICC
Clause 73: Persons (other than prisoners) assisting investigation or
giving evidence
This clause provides that if the ICC requests that
Australia assist in facilitating a person to voluntarily appear before the ICC
to assist with an investigation or give evidence, and that person is in
Australia and is not a prisoner, then the Attorney-General shall make travel
arrangements for that person to the ICC. The Attorney-General must first be
satisfied that the person is in Australia and has consented to assist the ICC or
give evidence.
Division 9 – Temporary transfer of prisoners to the ICC
Clause 74: Prisoners assisting investigation or giving
evidence
This clause sets out the procedure where the ICC requests
that a person who is a prisoner in Australia be temporarily transferred to the
ICC to assist with an investigation or give evidence. The procedure that the
Attorney-General must follow depends on whether the prisoner is a State
prisoner, a federal prisoner or both, and on whether the prisoner is on parole
or not.
Clause 75: Effect of removal to foreign country on
prisoners’ terms of imprisonment
This clause provides that a
prisoner is given credit towards their sentence for any time spent in custody
overseas while they have been temporarily transferred to assist the ICC under
clause 74.
Division 10 – Examination of places or sites
Clause 76: Assistance in examining places or sites
This
clause sets out the procedure where the ICC requests assistance in examining a
place or site in Australia that relates to an investigation or proceeding before
the ICC.
Division 11 – Search and seizure
Clause 77: Attorney-General may authorise applications for search
warrants
This clause provides that the Attorney-General is to
authorise a police officer to apply for a search warrant, if it is required to
comply with a request for assistance from the ICC in relation to an
investigation or proceeding before the ICC.
The search warrant must be
in relation to “evidential material”, which is defined in clause 4
to be a thing, including in electronic form, that is relevant to a crime within
the jurisdiction of the ICC.
Clause 78: Applications for search
warrants
This clause sets out the procedure to be followed by a
police officer in applying for a search warrant where that officer has been
authorised to apply for a search warrant under clause 77.
Search warrants
are dealt with in Divisions 1, 2 and 3 of Part 6 (clause 111 to
128).
Division 12 – Provision of records or documents
Clause 79: Facilitating the provision of records or
documents
This clause sets out the procedure where the ICC requests
assistance in the provision of records or documents that may be in Australia and
that relate to an investigation or proceeding before the ICC.
Division 13 – Protecting victims and witnesses and preserving evidence
Clause 80: Protecting victims and witnesses and preserving
evidence
This clause sets out the procedure where the ICC requests
assistance to protect victims or witnesses or preserve evidence that relates to
an investigation or proceeding before the ICC. If the assistance requested by
the ICC is not prohibited by any Australian law, then the Attorney-General must
authorise the appropriate authority (as defined in clause 4) to execute the
request, and the authority must send a report on the execution of the request to
the Attorney-General.
Division 14 – Identification, tracing, and freezing
or seizure, of proceeds of crimes within the jurisdiction of the
ICC
Subdivision A - Preliminary
This Division establishes a regime for making restraining orders, production
orders, monitoring orders and notices to produce under the Proceeds of Crime
Bill 2002 in response to requests for assistance from the ICC. Restraining
orders can be made where a person has been, or is about to be, charged with a
crime under the Statute or has been convicted of such a crime (“the
defendant”). This regime is materially the same as the regime for making
these orders that will be inserted into the Mutual Assistance in Criminal
Matters Act 1987 by the Proceeds of Crime (Consequential Amendments and
Transitional Provisions) Bill 2002.
This ensures that the procedures,
rights and safeguards for restraining orders relating to the property of people
who have been charged with, are about to be charged with, or have been convicted
of crimes within the jurisdiction of the ICC are the same as for serious
Commonwealth crimes. It also ensures that the assistance given to the ICC is
the same as the assistance that Australia already provides to foreign courts and
police authorities.
Clause 81: Application of Division
This
clause provides that Division 14 applies where the ICC makes a request for the
identification, tracing, and freezing or seizure, of tainted property in
relation to a crime within the jurisdiction of the ICC, provided that the
Attorney-General is satisfied that a person is about to be charged, has been
charged, or has been convicted, of a crime by the ICC.
Subdivision B – Restraining orders
Clause 82: Applying for and making restraining
orders
Subclauses (1) and (2) provide that, if the request from the
ICC in clause 81 involves making a restraining order, the Attorney-General will
authorise the DPP to apply for a restraining order in the appropriate
court.
Subclauses (3) and (4) provide that, if the DPP is authorised
under subsection (1), then the DPP may apply for a restraining order under the
Proceeds of Crime Bill 2002, and provide that Part 2-1 of that Bill
applies to both the application and any order. Subclause (5) modifies the
operation of Part 2-1 of the Proceeds of Crime Bill
2002.
Clause 83: Excluding property from restraining
orders
This clause enables restrained property to be recovered in
certain circumstances. It enables a third party who was not involved in the
commission of the offence to which the forfeiture order relates, to have his or
her interest in the property excluded from the restraining order. To be
successful, the property must not be the proceeds of the offence within the
meaning of the Proceeds of Crime Bill 2002. Under that Bill, property
ceases to be proceeds if acquired by a person for value and without knowledge
that it was proceeds of the offence (eg an innocent third party).
The
clause also enables property to be excluded if the restraint of the property
would cause financial hardship or it is otherwise in the public interest to do
so, regardless of whether the applicant for the exclusion order is the subject
of the order or a third party.
Clause 84: When restraining order
ceases to be in force
Subclause (1) provides that if a restraining
order is made because a person is going to be charged with a crime in the ICC,
and that person is not charged with such a crime within 1 month of making the
order, then the restraining order expires.
Subclause (2)(c) to (f) set
out the other circumstances where a restraining order will expire earlier,
namely:
• 28 days after the charge on which the restraining order was
based is withdrawn, if the person has not been charged with a related crime
within the jurisdiction of the ICC by then;
• 28 days after the person
was acquitted of the charge on which the restraining order was based, if the
person has not been charged with a related crime within the jurisdiction of the
ICC by then;
• when the property that is the subject of the restraining
order is forfeited; or
• when the restraining order is revoked.
Subdivision C – Production orders relating to crimes within the jurisdiction of the ICC
Clause 85: Requests for production orders
This clause
provides that, if the request from the ICC in clause 81 involves making an order
for the production of a property-tracking document (which is defined in clause
4), the Attorney-General will authorise the DPP to apply for a production order
in the appropriate court.
Clause 86: Applying for and making
production orders
Subclauses (1) and (2) enable an authorised officer
to seek a production order under the Proceeds of Crime Bill 2002, and
that Part 3-2 of that Bill is to apply to both the application and any
subsequent order.
Subclause (3) disapplies certain provisions in Part
3-2 for the purposes of a production order made on request of a foreign country,
and amends the application of certain other provisions in Part 3-2.
Clause 87: Retaining produced documents
This clause
provides that an authorised officer may retain a property-tracking document
obtained as a result of a production order until the Attorney-General provides
written directions on how to deal with the document. It is clear from subclause
(2) that such a direction may include forwarding that document to the ICC.
Subdivision D – Notices to financial institutions
Clause 88: Giving notices to financial institutions
This
clause sets out the procedure that must be followed where the Attorney-General
or a senior Departmental officer gives a notice to a financial institution
requiring the production of information or documents relevant to certain
matters.
Under this clause, a specified officer may give a written
notice to a financial institution requiring the production of any information or
documents relevant to certain account and transaction information. The notice
must not be issued unless the officer reasonably believes that giving the notice
is required to determine whether to take action under this Division (Division 14
of Part 4 of the ICC Act) or under the Proceeds of Crime Bill 2002 in
connection with proceedings under this Division, or in relation to proceedings
under this Division or the Proceeds of Crime Bill 2002.
Clause
89: Contents of notices to financial institutions
This clause sets
out what a notice issued under clause 88 must contain. First, it must state
that the officer giving the notice believes that giving the notice is required
to determine whether to take action under this Division or the Proceeds of
Crime Bill 2002 in connection with proceedings under this Division, or in
relation to proceedings under this Division or the Proceeds of Crime Bill
2002. It must also specify the name of the financial institution, the kind
of information or documents required to be provided, and the form and manner in
which that information or those documents are to be provided. Further, it must
also state that the information or documents must be provided within 14 days of
the notice.
If the notice specifies that information about the notice
must not be disclosed, it must also set out the effect of the offences in clause
92 (disclosing existence or nature of a notice) and 93 (failing to comply with a
notice).
Clause 90: Protection from suits etc. for those complying
with notices
This clause provides that a financial institution or one
of its officers, employees or agents are protected from any action, suit or
proceeding in relation to any action taken by the institution or person in
relation to its or their response to a notice under clause 88, or in the
mistaken belief that action was required under such a notice. The same parties
are also protected from prosecution for money laundering offences in respect of
the information provided in response to a notice under clause 88.
Clause 91: Making false statements in applications
This
clause creates the offence of providing a false or misleading statement in
relation to an application for a notice to a financial institution. The offence
applies whether the statement is given orally or in a document or other form.
The maximum penalty which can be imposed in relation to this offence is 12
months imprisonment, a fine of 60 penalty units, or both.
Clause 92:
Disclosing existence or nature of notice
This clause creates an
offence where a person who has been given a notice under clause 88 discloses the
existence or nature of the notice, where the notice specifies that information
about the notice must not be disclosed. The maximum penalty which can be
imposed in relation to this offence is 2 years imprisonment, a fine of 120
penalty units, or both.
Clause 93: Failing to comply with a
notice
This clause creates an offence where a person fails to comply
with a notice given under clause 88. The maximum penalty which can be imposed
in relation to this offence is 6 months imprisonment, a fine of 30 penalty
units, or both.
Subdivision E – Monitoring orders relating to crimes within the jurisdiction of the ICC
Clause 94: Requests for monitoring orders
This clause
provides that, if the request from the ICC in clause 81 involves making an order
that a financial institution give information about transactions through an
account with that financial institution in Australia, the Attorney-General will
authorise the DPP to apply for a monitoring order in the appropriate
court.
Clause 95: Applying for and making monitoring orders
Subclauses (1) and (2) provide that, if the Attorney-General has
authorised the DPP to apply for a monitoring order under clause 94, an
authorised officer can seek a monitoring order under the Proceeds of Crime
Bill 2002, and that Part 3-4 of that Bill is to apply to both the
application and any subsequent order.
Subclause (3) amends the
application of certain provisions in Part 3-4 for the purposes of a monitoring
order made pursuant to a request from the ICC.
Clause 96:
Passing on information given under monitoring orders
This clause
provides that information gained under a monitoring order must be passed to the
Attorney-General or a specified officer of the Attorney-General's Department as
soon as practicable after the enforcement agency receives the
information.
Subdivision F – Search warrants relating to proceeds of crime and property-tracking documents
Clause 97: Requests for search warrants
This clause
provides that, if the request from the ICC in clause 81 involves issuing a
search warrant for the proceeds of a crime within the jurisdiction of the ICC or
a property tracking document, the Attorney-General will authorise the DPP to
apply for a search warrant in the appropriate court.
Subclause (2) allows
the search warrant to be sought in any State or Territory in which some or all
of the proceeds of crime or the property-tracking documents are reasonably
suspected of being located.
Clause 98: Applying for and issuing search
warrants
If the Attorney-General has authorised the DPP under clause
97, then subclauses (1) and (2) enable an authorised officer to seek a search
warrant under the Proceeds of Crime Bill 2002, and that Part 3-5 of that
Act is to apply to both the application and any subsequent order.
Subclause (3) disapplies provisions in Part 3-5 of the Proceeds of
Crime Bill 2002 which provide for an incidental power of seizure and
provides for the retention and return of seized property (those matters are
dealt with in clauses 99 and 100 of this Bill) and also amends the application
of certain other provisions in Part 3-5.
Clause 99: Seizure of other
property and documents
This clause authorises the incidental
seizure of other things when executing a search warrant issued under clause 98,
where it is believed that seizure is necessary to prevent the thing's
destruction, loss or concealment, or its use in an offence.
Specifically, the provision enables the seizure of a thing reasonably
believed to be a property-tracking document and the proceeds of the crime within
the jurisdiction of the ICC to which the warrant relates but which is not of the
kind specified in the warrant. If there is another search warrant in force
under Part 3-5 of the Proceeds of Crime Bill 2002 in relation to a crime
within the jurisdiction of the ICC, a thing reasonably believed to be a
property-tracking document related to that offence and proceeds of the offence
may also be seized. In addition, if the authorised officer finds something he
or she reasonably believes to be relevant to the criminal proceedings in respect
of the crime within the jurisdiction of the ICC, or will afford evidence in
relation to an Australian offence, that thing may be seized.
Clause
100: Return of seized property to third parties
This clause provides
for property (other than property-tracking documents) that is seized under a
search warrant to be returned to a person who claims an interest in that
property.
The person must apply to the court which issued the search
warrant. To order the return of the property the court must be satisfied that
the applicant is entitled to the return of the property, that the property is
not the proceeds of the crime within the jurisdiction of the ICC, and that the
person suspected of committing the relevant offence has no interest in the
property.
However, if the property was seized because it may afford
evidence of an Australian offence, the person cannot apply under this clause to
get the property back.
Clause 101: Dealing with seized property
(other than property-tracking documents)
This clause provides how to
deal with property seized under a warrant issued in relation to a crime within
the jurisdiction of the ICC and which is not evidence of an Australian offence
or a property-tracking document.
Subclause (2) establishes the general
rule that seized property must be returned if a restraining order has not been
made (Subdivision B) or a forfeiture order has not been registered (Part 11) in
an Australian court within 30 days of the seizure.
If a restraining order
is made within the 30 day period, the head of the agency whose officer seized
the property must ensure that the property is given to the Official Trustee in
accordance with a direction of the court that the Official Trustee take custody
and control of the property. If the court has made no such direction, but has
ordered under subclause (6) that the head of the relevant agency may retain the
property, that person must retain the property in accordance with the
restraining order (see subclause (3)).
Where property is given to the
Official Trustee under subclause (3), the Proceeds of Crime Bill 2002
applies to that property as if it were “controlled property” (which
is defined in the Proceeds of Crime Bill 2002 as property in relation to
which the Official Trustee must exercise the powers, and perform the duties,
conferred or imposed on it, in relation to property of which a court has ordered
the Official Trustee to take custody and control).
Subclauses (5) and (6)
provide that where a restraining order has been made under Subdivision B in
relation to a crime within the jurisdiction of the ICC, the head of the relevant
enforcement agency may apply to the court to retain the property. The court may
grant such an order if satisfied that retention of the property is necessary for
it to be dealt with in accordance with the relevant restraining order. The
order may be for so long as the property is required to be retained.
Subclause (7) requires the head of the relevant agency to deal with
seized property still in his or her possession when a forfeiture order is
registered in Australia under Part 11 of this Bill in accordance with the terms
of that order.
Clause 102: Dealing with seized property-tracking
documents
This clause provides that an authorised officer may retain
a property-tracking document obtained as a result of a search warrant for a
period up to one month, pending the Attorney-General providing written
directions on how to deal with the document. Subclause (2) provides that such a
direction may include forwarding that document to the ICC.
Division 15 – Other types of assistance
Clause 103: Other types of assistance
This clause sets out that
if the ICC makes any request for assistance that is not dealt with in the
Divisions above, then the Attorney-General must authorise the appropriate
Australian authority to execute the request unless the request is prohibited by
Australian law and the ICC does not either modify the request or agree to
conditions so that the request does not conflict with Australian law.
The
Australian authority must then execute the request and send a written report to
the Attorney-General.
Division 16 – Miscellaneous
Clause 104: Effect of authorisation to execute request
This
clause allows the Attorney-General to refuse or postpone a request for
assistance (on the grounds set out in clauses 51 and 52) at any stage, even if
the Attorney-General has authorised the request to be executed by an Australian
authority, provided that the Attorney-General has not sent a formal response to
the ICC.
Clause 105: Request may relate to assistance sought by
defence
This clause clarifies that a request from the ICC to assist
the defence must be treated the same way as a request from the ICC to assist the
prosecutor.
Clause 106: Prosecutor may execute request
This
clause allows the ICC prosecutor to directly execute a request for cooperation
in Australia where this is necessary for the request to be successfully executed
in limited circumstances, where the request does not involve any compulsory
measures and:
• after consultation with Australian authorities and
subject to any reasonable conditions that they impose; or
• if a crime
has been committed in Australia and the ICC has decided that the case is
admissible, then after all possible consultations with Australia.
If the
crime was not committed in Australia, then if the Attorney-General thinks that
there is any problem with the prosecutor directly executing the request then the
Attorney-General must consult with the ICC to resolve the problem.
This
clause also clarifies that the procedures for the protection of confidential
information relating to national security (Part 8 of this Act) apply to the
execution of a request for cooperation.
Part 5 – Investigations or sittings of the ICC in Australia
Clause 107: Prosecutor may conduct investigations in
Australia
This clause authorises the ICC prosecutor to conduct
investigations in Australia in accordance with the procedures for requesting
assistance or cooperation, or where the ICC Pre-Trial Chamber has authorised the
prosecutor to take specific investigative steps because there are no functioning
authorities or judicial systems to implement a request for assistance or
cooperation.
Clauses 108, 109 and 110: ICC sittings in Australia,
ICC’s powers while sitting in Australia and ICC may require witnesses at
sittings in Australia to give undertakings as to truthfulness of their
evidence
These clauses authorise the ICC to sit in Australia for the
purpose of carrying out its functions under the Statute and its Rules, and to
exercise its functions and powers under the Statute and Rules (including
requiring witnesses to swear to the truth of their evidence) while in
Australia.
Part 6 – Search, seizure and powers of
arrest
Part 6 is based on the scheme for search, seizure and powers of arrest that applies in relation to the International Criminal Tribunals for the Former Yugoslavia and Rwanda under the International War Crimes Tribunal Act 1995 (Part 7, clauses 47 to 77).
Division 1 – Search warrants
Clause 111: When search warrants can be issued
Subclauses (1)
and (2) authorise a magistrate to issue a warrant authorising the search of
premises, ordinary search or frisk search of a person where an application has
been made (under clause 27 or 78). The magistrate must be satisfied that there
are reasonable grounds for suspecting that evidential material is at the
premises or in the possession of the person, or will be within 72 hours. If the
warrant was applied for by electronic means (see clause 116) then this time
period is 48 hours (subclause (3)).
Subclause (4) states that the person
applying for the warrant must inform the magistrate if there is any suspicion
that firearms may be required in the execution of the warrant, and also state
the grounds for that suspicion. This is intended to alert the magistrate to the
possibility of violence.
Subclause (5) states that any member or special
member of the Australian Federal Police that applies for a warrant must inform
the magistrate if they have previously applied for a warrant for the same person
or premises. This is intended to curtail the opportunity for forum shopping in
applying for search warrants in relation to persons or
premises.
Subclause (6) authorises a magistrate in New South Wales or the
Australian Capital Territory to issue a warrant in relation to persons or
premises in the Jervis Bay Territory. This is because there is no magistrate
resident in the Jervis Bay Territory.
Subclause (7) allows a magistrate
in one State to issue a search warrant in relation to persons or premises in
that State or an external territory. If it is not possible to predict where a
person is, a magistrate can issue a search warrant for a person anywhere in
Australia.
A magistrate may also issue a search warrant in relation to
persons or premises in another State or the Jervis Bay Territory if the
magistrate is satisfied that there are special circumstances that justify such a
warrant. This is to allow the issue of a warrant that must be executed in a
number of jurisdictions simultaneously – it would be undesirable if an
application had to be made in each jurisdiction individually, especially if the
officers with the relevant knowledge are located in one
jurisdiction.
Clause 112: Contents of warrants
Subclause
(1) sets out the matters which must be specified in a search warrant. Paragraph
(e) sets out the maximum times that a warrant may remain in force, which must be
specified in the warrant, which is 48 hours if the warrant was applied for by
electronic means (see clause 116), and 7 days in other cases. Subclause (2),
however, clarifies that this time limit does not prevent further search warrants
being issued for the same person or premises.
Subclause (3) sets out
additional matters that the magistrate is to specify in a search warrant
relating to premises. Paragraph (a) requires the magistrate to specify that the
warrant authorises the seizure of items that aren’t specifically
identified in the warrant if those items are evidential material or are relevant
to an indictable offence against Australian law and the items must be seized to
prevent them being concealed, lost, destroyed or used in the commission of a
crime.
Paragraph (b) requires the magistrate to specify whether the
warrant authorises the ordinary or frisk searching of a person who is at or near
the premises that the warrant is issued for. This is to ensure that the
magistrate specifically considers whether such a power to search persons is
appropriate.
Subclause (4) sets out additional matters that the
magistrate is to specify in a search warrant relating to persons. Paragraph (a)
is very similar to paragraph (3)(a), and requires the magistrate to specify that
the warrant authorises the seizure of evidential material found on the person
being searched or in a vehicle that the person recently used. Paragraph (b)
requires the magistrate to set out what kind of search is authorised – a
frisk search or an ordinary search.
Clause 113: The things authorised
by a search warrant in relation to premises
This clause sets out the
activities that are authorised by a search warrant in relation to premises. It
also specifies that if a search warrant states that is must be executed between
certain times, then the search warrant must not be executed outside of those
times.
Clause 114: The things authorised by a search warrant in
relation to persons
This clause sets out the activities that are
authorised by a search warrant in relation to persons. It also specifies that
if a search warrant states that it must be executed between certain times then
it must not be executed outside of those times, and that if the warrant
specifies the type of search that is authorised then no other type of search may
be performed.
Clause 115: Restriction on personal
searches
This clause clarifies that a warrant cannot authorise a
strip search or search of a person’s body cavities.
Clause 116:
Warrants may be issued by telephone etc.
This clause authorises a
police officer to apply for a search warrant by telephone, fax, telex or other
electronic means in an urgent case where the delay of applying for the warrant
in person could frustrate the execution of the warrant. The clause also sets
out the procedures for applying for a warrant in these
circumstances.
Clause 117: Formalities relating to warrants issued by
telephone etc.
This clause sets out the procedures for the issuing of
a warrant applied for by telephone or other electronic means (clause 116). The
magistrate must tell the officer applying for the warrant the terms of the
warrant and the day and time that it was signed, and the officer must complete a
copy of the warrant in those terms.
The officer must send his or her
copy of the warrant to the magistrate, along with any information that was used
in the application that was not sworn, no later than the day after the expiry of
the warrant. The magistrate is to attach these documents to the copy of the
warrant that the magistrate signed. If the warrant must be proved in any court
proceedings, then the copy of the warrant signed by the magistrate must be
produced or the court must assume that the powers in the warrant that were
exercised were not properly authorised.
Division 2 – Provisions relating to execution of search warrants
Clause 118: Availability of assistance and use of force in executing a
warrant
This clause allows the executing officer to obtain any
reasonable and necessary assistance in executing the warrant. The executing
officer or a police officer may use reasonable and necessary force against a
person or thing in executing the warrant. A person who is authorised to assist
in the execution of the warrant but who is not a police officer may use
reasonable and necessary force against a thing, but not against a
person.
Clause 119: Copy of warrant to be shown to occupier
etc.
This clause provides that when a search warrant is executed, the
executing officer must identify themselves and a copy of the warrant must be
made available to the person being searched or the occupier (or a person
apparently representing the occupier) of the premises being searched, if the
occupier (or his or her representative) is present.
Clause 120:
Specific powers available to officers executing warrants
This clause
authorises an officer executing a search warrant to take photographs and video
recordings of the premises and things found at the premises in certain
circumstances.
This clause also sets out the circumstances in which the
execution of a warrant can be resumed after an interruption.
Clause
121: Use of equipment to examine or process things
Subclause (1)
allows an officer executing a search warrant to bring equipment to the premises
to determine whether things are liable to be seized.
Subclause (2) sets
out the circumstances in which things may be taken from the premises to examine
or process them and determine whether they are liable to be seized. Subclause
(3) provides that if things are removed for processing or examination then the
executing officer must, where practicable, inform the occupier where and when
the processing or examination will take place and allow the occupier (or his or
her representative) to be present.
Subclause (4) sets out the
circumstances in which the executing officer may use equipment that is already
at the premises to examine or process a thing and determine whether it is liable
to be seized.
Clause 122: Use of electronic equipment at
premises
This clause allows the executing officer or an officers
assisting (both defined in clause 4) to use any electronic equipment at the
premises being searched to access evidential material. The officers must
believe on reasonable grounds that the equipment can be used without damaging
it.
If the officer finds evidential material by operating the electronic
equipment, they may seize the equipment, disc, tape or other associated device,
or they may print the relevant material and seize the printed hard copies, or
they may copy the relevant material onto another disc or storage device and
seize that.
Subclause (3) sets out a preference for printing out or
copying the evidential material and seizing the duplicate that is created
– the equipment itself can only be seized if it is not practicable to
print or copy the material, or if possession of the equipment could constitute
an offence against Australian law.
The officer may secure the equipment
by locking it up or placing it under guard if the officer believes on reasonable
grounds that evidential material may be accessible by operating the electronic
equipment, but that expert assistance is required to operate the equipment and
that a failure to secure the equipment might result in the evidential material
being destroyed or interfered with. The equipment can be secured for up to 24
hours, and the officer must give notice of their intention to secure the
equipment for up to 24 hours to the occupier of the premises.
If the
officer believes that expert assistance will not be available within 24 hours
then the officer can apply to a magistrate for an extension. The officer must
give the occupier notice in relation to applying for such an extension, and the
occupier is entitled to be heard by the magistrate during the
application.
Clause 123: Compensation for damage to electronic
equipment
This clause provides for compensation to be paid to the
owner of electronic equipment if that equipment is damaged in certain
circumstances.
Clause 124: Copies of things seized to be
provided
This clause states that if an officer executing a warrant
seizes an item that can be readily copied, then the officer must provide a copy
to the occupier (or a person apparently representing the occupier) as soon as
practicable if that person requests a copy. The officer does not have to
provide a copy if possession of the item seized could constitute an offence
against Australian law, or if the officer is seizing a copy of information that
has been taken from electronic equipment, leaving the original, under clause
122(2)(b) or (c).
Clause 125: Occupier entitled to be present during
search
This clause entitles the occupier of premises that are being
searched (or a person apparently representing the occupier) to observe the
search, provided that he or she does not impede the search. The occupier
observing the search does not prevent more than one part of the premises being
searched at the same time.
Clause 126: Receipts for things seized
under warrant
This clause requires a receipt to be issued for any
item that is seized or removed to process or examine it (under clause 121(2)).
One receipt may cover more than one item. This allows the officer to issue a
receipt for a class of items if appropriate, rather than issue an individual
receipt for each item.
Division 3 – Stopping and searching conveyances
Clauses 127 and 128: Searches without warrant in emergency situations
and How a police officer exercises a power to search without a
warrant
Clause 127 applies where a police officer suspects on
reasonable grounds that there is evidential material in or on a vehicle, vessel,
aircraft or other conveyance and that he or she must stop and search the vehicle
and seize the material to prevent the material being concealed, lost or
destroyed. The officer must also believe that the circumstances are so urgent
and serious that he or she must act without a warrant.
In these
circumstances the officer may stop, detain and search the vehicle the vehicle.
The officer may also seize any evidential material, or material that is relevant
to an offence against Australian law, found in or on the vehicle if that is
required to prevent the concealment, destruction or loss of the material and the
circumstances are serious and urgent.
Any of the powers under clause 127
must be exercised subject to the limitations in clause 128, which sets out the
manner in which a police officer can search a vehicle without a
warrant.
Division 4 – Arrest and related matters
The clauses contained in this Division set out the powers that police
officers have when arresting a person under this Act, or pursuant to a warrant
issued under this Act. They provide the powers, and set guidelines for the
exercise of those powers, in relation to matters such as entering premises, use
of force, searching persons and premises and seizing items.
Clause
129: Power to enter premises to arrest person
This clause provides
that if a police officer has the power to arrest a person and the police officer
believes on reasonable grounds that a person is on the premises, then the police
officer may enter the premises for the purposes of searching for and arresting
that person. This section also authorises the police officer to use such force
as is necessary and reasonable in the circumstances.
Generally, the
police officer may enter the premises at any time. However, if the premises is
a “dwelling house” (which is defined in subclause (3)) then the
police officer may not enter between 9pm and 6am unless the officer believes on
reasonable grounds that it would not be practicable to arrest the person at any
other time or that it is necessary to prevent the concealment, loss or
destruction of evidentiary material.
Clause 130: Use of force in
making arrest
This clause sets out guidelines for the use of force in
arresting a person under this Act or pursuant to an arrest warrant issued under
this Act. Only force that is reasonable and necessary to make the arrest or
prevent the escape of the person can be used. Subclause (2) specifically sets
out the circumstances in which a police officer can use force that is likely to
cause death or grievous bodily harm to the person.
Clause 131: Persons
to be informed of the grounds of arrest
This clause requires a police
officer to inform a person that he or she is arresting under this Act, or
pursuant to a warrant issued under this Act, of the reasons for the arrest, of
the crime in relation to which the person is being arrested, at the time of the
arrest. The person does not need to be informed in precise or technical
language, provided that they are informed of the substance of the crime or the
reason for the arrest.
This requirement does not apply if the arrested
person should, in the circumstances, know of the reasons for the arrest or if
the arrested person’s actions make it impracticable to inform
them.
Clause 132: Power to conduct a frisk search of an arrested
person
If a police officer who has arrested a person, or who is
present during an arrest, suspects on reasonable grounds that they should frisk
search the person to determine whether they are carrying any “seizable
item”, then this clause authorises the police officer to frisk search the
person at or soon after the arrest and seize any “seizable item”
that is found. “Seizable item” is defined in clause 4 to mean
anything that would present a danger to a person or that could be used to assist
an escape.
Clause 133: Power to conduct an ordinary search of an
arrested person
If a police officer who has arrested a person, or who
is present during an arrest, suspects on reasonable grounds that the person is
carrying any “seizable item” or any evidential material which
relates to the crime that the person was arrested for, then this clause
authorises the police officer to conduct an ordinary search the person at or
soon after the arrest and seize any “seizable item” or evidential
material that is found.
Clause 134: Power to conduct a search of
arrested person’s premises
If a police officer arrests a person
at the premises, or who is present during such an arrest, then the officer may
seize items that are in plain view at the premises if the officer believes on
reasonable grounds that the items are “seizable items” or evidential
material which relates to the crime for which the person was
arrested.
Clause 135: Power to conduct an ordinary search or strip
search
Once a person who has been arrested has been brought to a
police station, if no ordinary search of the person has already been conducted
(see clause 133) a police officer can perform an ordinary search.
A
police officer may conduct a strip search of the person if the officer suspects
on reasonable grounds that the person has a “seizable item” or
evidential material which relates to the crime that the person was arrested for,
or that examining the person’s body will provide evidence of their
involvement in a crime. The police officer must also suspect on reasonable
grounds that the strip search is necessary to find that evidence or item.
A strip search must be approved by a police superintendent (or higher
rank). If the superintendent refuses to approve the search, they must record
their reasons.
In any case, a person may consent to a strip
search.
Clause 136: Rules for conduct of strip search
This
clause sets out the rules that govern any strip search conducted under clause
135.
Division 5 – General
Clause 137: Conduct of ordinary searches and frisk
searches
This clause provides that, if practicable, frisk searches
and ordinary searches must be conducted by a person who is the same sex as the
person being searched. An officer assisting who is not a police officer cannot
take part in a frisk search or ordinary search.
Clause 138:
Announcement before entry
This clause provides that before any person
enters premises to arrest a person, a police officer must announce that he or
she is authorised to enter the premises and give any occupant a chance to let
the police officer enter, unless there are reasonable grounds to believe that
immediate entry to the premises is necessary to ensure the safety of a person or
to effectively execute the warrant.
Clause 139: Offences relating to
telephone warrants
This clause creates offences relating to preparing
and executing warrants obtained by telephone. These offences are intended to
prevent abuse of telephone search warrants, and are punishable by up to 2 years
imprisonment.
It is an offence under this section to knowingly state
the name of a magistrate unless that magistrate issued the warrant, or to
knowingly depart materially from the matters authorised by the magistrate, in a
form under clause 116 (this clause deals with issuing warrants by telephone).
It is also an offence to purport to execute or present a form of a warrant under
clause 116 that the person knows has not been approved by a magistrate or that
differs in a material particular from the form authorised by a magistrate, or to
send to a magistrate a form of warrant under clause 116 that is not the form
that the person purported to execute.
Clause 140: Retention of things
seized
This clause sets out how any items that are seized under this
Part by a police officer must be dealt with. The police officer that seizes the
item must deliver it to the Commissioner of the AFP. The Commissioner must
inform the Attorney-General that he or she has the item. The Attorney-General
can direct the Commissioner, in writing, how to deal with the item, and this
direction may be to send the item to the ICC. The Attorney-General must direct
the Commissioner to return the item if there is no longer any reason for its
seizure, or it will not be used in evidence in the ICC or in any Australian
criminal proceedings (unless the item is forfeited or forfeitable to the
Commonwealth or there is a dispute over the ownership of the
item).
Clause 141: Magistrate may permit a thing to be
retained
This clause allows the Commissioner of the AFP to apply to a
magistrate for an order allowing the Commissioner to continue to retain an item
that has been seized in certain circumstances.
Part 7 – Information provided in confidence by third party
Clause 142: Disclosure of information provided in confidence by third
party
Subclause (1) provides that if the ICC requests information
that was provided to Australia in confidence, the Attorney-General must seek the
consent of the foreign state or organisation that provided the information
before giving it to the ICC.
If the information was provided by a state
that is a party to the Statute, then if that state consents to the information
being disclosed the Attorney-General must give the information to the ICC
(subject to the procedures for protecting Australia’s national security
interests) (subclause (2)). If a state that is a party to the Statute informs
the Attorney-General that they will resolve whether or not to disclose the
information directly with the ICC, then the Attorney-General must inform the ICC
of this (subclause (3)).
If the information was provided by an
international organisation or a state that is not a party to the Statute, and
they do not consent to the information being disclosed to the ICC, then the
Attorney-General must inform the ICC that he or she is unable to disclose the
information because of a pre-existing obligation of confidentiality (subclause
(4)).
Clause 143: Request for Australia’s consent to
disclosure
This clause provides that if Australia has provided
information to another country on a confidential basis, and that country
requests that Australia consents to the information being disclosed to the ICC,
then the Attorney-General must either consent to the disclosure or undertake to
resolve the matter with the ICC directly to ensure that Australia’s
national security interests are protected (the procedures for which are set out
in Part 8).
Part 8 – Protection of Australia’s national security interests
Clause 144: How national security issues are to be dealt
with
This clause states that if any issue arises relating to
Australia’s national security interests at any stage of a proceeding
before the ICC then it must be dealt with under Part 8 of the Act and in the
method set out in Article 72 of the Statute, which covers protection of national
security information.
Clause 145: Request for cooperation involving
national security
This clause states that any request for cooperation
which appears to involve the disclosure of information which may prejudice
Australia’s national security interests must be dealt with under the
procedures set out in clauses 148 and 149. If these procedures do not resolve
the request, then the Attorney-General may refuse to comply with the request or
authorise the disclosure of the information.
Clause 146: Request to
disclose information or documents involving national security
This
clause states that if a person refuses to disclose information or documents, or
refers a request for information or documents to the Attorney-General, on the
basis that the disclosure would prejudice Australia’s national security
interests, then the Attorney-General must determine whether he or she believes
that the disclosure would prejudice Australia’s national security
interests.
If the Attorney-General believes that the disclosure would
prejudice Australia’s national security interests, then (as in clause 145)
the request must be dealt with under the procedures set out in clauses 148 and
149. If these procedures do not resolve the request, then the Attorney-General
may refuse to comply with the request or authorise the disclosure of the
information.
Clause 147: Other situations involving national
security
This clause states that if the Attorney-General believes
that any other disclosure of information (other than those mentioned in clauses
145 and 146) would prejudice Australia’s national security interests, then
that matter must be dealt with under the procedures set out in clauses 148 and
149.
Subclause (2) specifically refers to a situation where the
Attorney-General learns that information or documents that relate to Australia
are being, or are likely to be, disclosed in any proceeding before the ICC.
This subclause authorises the Attorney-General to intervene in the proceeding,
in accordance with the Statute, to resolve the issue of protecting
Australia’s national security interests. If the matter is not resolved by
the intervention and the procedures in clauses 148 and 149, then the
Attorney-General may refuse to authorise the disclosure of the
information.
Clause 148: Consultation with ICC
required
This clause states that if the Attorney-General believes
that disclosure of information may prejudice Australia’s national security
interests, he or she must consult with the ICC, and the legal representative of
the defendant, to determine whether there is any way that the request or use of
the information can be modified so that it does not prejudice Australia’s
national security interests.
Clause 149: Procedure where no
resolution
This clause states that if, after consulting with the ICC
under clause 148, the Attorney-General decides that no conditions or other means
will allow the information to be disclosed without prejudicing Australia’s
national security interests then the Attorney-General must inform the ICC of the
specific reasons for the decision (unless the reasons would themselves prejudice
Australia’s national security interests).
Subclause (2) sets out
limited circumstances in which the Attorney-General must consult with the ICC
after a decision that the information cannot be disclosed has been
made.
Part 9 – Transportation of persons in custody through Australia
Clause 150: Transportation of persons in custody through
Australia
This clause sets out the obligations for the transport of a
person in custody through Australia. Such a person may be being surrendered to
the ICC, or have been sentenced to imprisonment by the ICC and is being
transferred between States to serve that sentence.
Subclause (2) sets out
the information that must be contained in a request from the ICC to transport a
person through Australia who has been surrendered by a foreign country to the
ICC, or has been sentenced to imprisonment and is being transported to or from
the ICC or between countries. The Attorney-General must authorise such a
request from the ICC provided that it contains this information and is made to
the Attorney-General in writing or through InterPol.
Subclause (3) states
that the Attorney-General must not authorise a request to transport a person who
is being surrendered by a foreign country to the ICC through Australia if
transporting the person through Australia will impede or delay their
surrender.
Subclause (4) states that no authorisation is required for a
prisoner to be transported through Australian airspace without any landing, and
subclause (5) sets out the procedures if there is an unauthorised landing during
such a transit.
Part 10 – Enforcement in Australia of reparation orders made and fines imposed by ICC
Clauses 151 and 152: Assistance with enforcement of orders for
reparation to victims and orders imposing fines
These clauses state
that if the ICC orders that a convicted person make reparations to their victims
or pay a fine, and requests that Australia give effect to this order as a fine
or forfeiture order, then the Attorney-General shall authorise the DPP to apply
to register the fine or order for reparations unless the conviction or the
penalty are being appealed.
Clause 153: Registration of
order
Subclause (1) states if the DPP applies to register an order
after being authorised under clauses 151 or 152, then the court must register
the order and must also direct the DPP to publish the fact that the order has
been registered in an appropriate manner and time.
Subclause (2) states
that the court must register a copy of the order that has been authenticated by
the ICC, however subclause (3) states that a facsimile copy of an authenticated
order is acceptable.
Clause 154: Effect of order
Subclauses
(1) and (2) state that, once registered, an order for reparation to victims can
be enforced as an order for the payment of money into court and an order for a
fine can be enforced as an order by the court imposing that fine. In each case,
the orders are to have effect and be enforced as if they were made on the day
that they were registered in the court.
Subclause (3) states that if the
order was registered by registering a facsimile copy of the order, then unless
an authenticated copy of the order is registered in the court within 21 days the
registration ceases to have effect.
Part 11 – Forfeiture of proceeds of international crimes
Clause 155: Requests for enforcement of forfeiture
orders
This clause states that if the ICC requests that Australia
give effect to an order for a person to forfeit property that is believed to be
in Australia, and the Attorney-General is satisfied that the person has been
convicted of the relevant crime by the ICC, then the Attorney-General shall
authorise the DPP to apply to register the order.
Clause 156:
Registration of order
Subclause (1) states that if the DPP applies to
register an order after being authorised under clause 155, then the court must
register the order.
Subclause (2) sets out that the DPP must give
notice to people who may have an interest in the property with a power for the
court to make directions if needed, including the persons the subject of the
order. Subclause (3) provides that the application must, however, be considered
ex-parte if the DPP requests the court to do so.
Subclause (4)
states that the court is to register a copy of the order that has been
authenticated by the ICC, however subclause (5) states that a facsimile copy of
an authenticated order is acceptable. If the court does register a facsimile
copy of the order, then unless an authenticated copy of the order is registered
in the court within 21 days the registration ceases to have effect (subclause
(6)).
This procedure to allow the provisional registration of facsimile
copies of forfeiture orders is the same procedure that applies to reparation
orders and fines (clause 153), and the same procedure that is used for
registration of similar orders under the International War Crimes Tribunal
Act 1994 (section 46)
Clause 157: Effect of
order
Subclause (1) provides that a forfeiture order that has been
registered (under clause 156) has effect as if it was made by the court under
the Proceeds of Crime Bill 2002 at the time of registration.
Subclause (2) amends the effect of clause 68 of the Proceeds of Crime
Bill 2002 in relation to this Bill. Clause 68 of the Proceeds of Crime
Bill 2002, as amended by this subclause, provides an exception to the rule
that property specified in a forfeiture order vests absolutely in the
Commonwealth at the time the order is made. Clause 68 will now operate in these
cases so that property specified in a forfeiture order where a joint owner of
the property died before the forfeiture order was made, but after the DPP
applied for registration of the forfeiture order under this Bill, is taken to
have vested in the Commonwealth immediately before the person's death. Any
restraining order is also taken to have continued to apply to the property as if
the person had not died. The effect of this provision is that the property does
not form part of the deceased's estate.
Subclause (3) enables the
Attorney-General to give directions for the disposal of property the subject of
a registered forfeiture order. This subclause is subject to the operation of the
provisions in clause 158 regarding the property interests of innocent third
parties.
Subclause (4) disapplies certain parts of the Proceeds of
Crime Bill 2002 which do not have practical application to the enforcement
of forfeiture orders under this Act.
Clause 158: Effect on third
parties of registration of foreign forfeiture orders
This clause
enables third parties who were not involved in the commission of the offence to
which the forfeiture order relates, to either have their interest in the
property transferred to them by the Commonwealth or to be recompensed for their
interest in the forfeited property. To be successful, the property must not be
the proceeds of the offence within the meaning of the Proceeds of Crime Bill
2002. Under that Bill, property ceases to be proceeds if acquired by a
person for value and without knowledge that it was proceeds of the offence (eg
an innocent third party).
If the person was given notice or appeared at
the hearing where the forfeiture order was made, he or she may only apply if
given leave by the court. Applications should be made within six weeks of the
forfeiture order being registered in the court; however, the court may give
leave to apply in certain circumstances.
Clause 159: Forfeiture may
be treated as pecuniary penalty order
If the Attorney-General cannot
give effect to a forfeiture order (for example because the person has disposed
of the property that was to be forfeited), this allows the forfeiture order to
be treated as a pecuniary penalty order under the Proceeds of Crime Bill
2002. The pecuniary penalty order will be for the same amount as the value
of the property to be forfeited as specified in the order of the ICC or, if
there is no such order, the value of the property to be forfeited in the opinion
of the Attorney-General.
Subclause (4) provides that the procedures for
enforcing a pecuniary penalty order under Division 4 of Part 2-4 of the
Proceeds of Crime Bill 2002 apply to the enforcement of a forfeiture
order that is treated as a pecuniary penalty order under this clause (with
certain modifications specified in paragraphs (a) to (c)).
Part 12 – Enforcement in Australia of sentences
imposed by the ICC
Division 1 – Preliminary
Clause 160: Australia may agree to act as State of
enforcement
This clause states that the Attorney-General may notify
the ICC that Australia agrees to allow persons sentenced to imprisonment by the
ICC to serve their sentences in Australia. The Attorney-General can impose
conditions on accepting prisoners in the notification of acceptance, and
subclause (2) sets out some of the conditions that may be imposed.
Any
conditions that are imposed can be withdrawn by the Attorney-General at any time
by notifying the ICC.
Clause 161: Withdrawal of agreement to act as
State of enforcement
This clause allows the Attorney-General to
withdraw the notification under clause 160 (that Australia will be a State of
enforcement) at any time by notifying the ICC that Australia is no longer
prepared to accept persons sentenced to imprisonment by the ICC.
Subclause (2) clarifies that this withdrawal does not affect any ICC
prisoner that Australia has already accepted to serve their sentence of
imprisonment in Australia.
Clause 162: Designation of Australia as
place for service of sentence
This clause states that if Australia is
accepting ICC prisoners (i.e. the Attorney-General has given notification that
Australia will accept prisoners under clause 160 and has not withdrawn this
notification under clause 161), and the ICC sentences a person to imprisonment
and designates Australia as the State where the sentence is to be served, then
the Attorney-General must consider whether to accept this designation of
Australia. In considering whether to accept this designation, the
Attorney-General can request further information from the ICC.
Clause
163: Governmental consent to acceptance of designation
This clause
sets out the process to be followed before the Attorney-General can accept the
designation of Australia from the ICC. The Attorney-General must first
determine which State it is most appropriate for the prisoner to serve their
sentence in. The Attorney-General must seek the consent of the relevant State
Minister and provide all information that he or she has received from the ICC to
the State Minister.
The State Minister must inform the Attorney-General
in writing as soon as possible whether he or she consents to the prisoner
serving their sentence in that State, and if he or she does consent, detailing
which prison, hospital or place the sentence is to be served in and any other
relevant matters.
If the State Minister informs the Attorney-General that
he or she does not consent to the prisoner serving their sentence in that State,
then the Attorney-General may seek the consent of a different
State.
Clause 164: Acceptance of designation
Subclause (1)
sets out the conditions that must be satisfied before the Attorney-General can
accept the designation of Australia as the place for the ICC prisoner to serve
their sentence:
• the Attorney-General must be satisfied that the ICC
has agreed to any conditions imposed (see clause 160);
• a State
Minister must have consented to the sentence being served in that State; and
• if the prisoner is not an Australian citizen, then the Minister
administering the Migration Act 1958 must have consented to the person
serving their sentence in Australia.
Subclause (2) states that, when
accepting the designation, the Attorney-General must notify the ICC whether the
written consent of the prisoner (or their representative) to serve their
sentence in Australia is required. If this consent is required, the
Attorney-General must ask the ICC to inform Australia when the consent has been
obtained.
Division 2 – Transfer to Australia of ICC prisoners
Clause 165: Issue of warrant for transfer to Australia
This
clause states that the Attorney-General may issue a warrant, in the statutory
form, for the transfer of an ICC prisoner to Australia if the conditions in
clause 164 (including the written consent of the prisoner if required) have been
complied with.
Clause 166: Warrants for transfer to
Australia
This clause sets out the contents of a warrant of transfer
issued under clause 165. It also sets out the conduct that such a warrant
authorises or requires escort officers and other officials to
perform.
Subclause (4) authorises the Attorney-General to give any
direction or approval that is required to ensure that the warrant is executed in
accordance with its terms.
Clause 167: Cancellation of
warrant
Subclause (1) allows the Attorney-General to cancel a warrant
of transfer that was issued under clause 165 at any time before the prisoner
leaves the country where he or she is being held in custody.
Subclause
(2) states that the Attorney-General must cancel the warrant of transfer if the
ICC cancels the designation of Australia or decides not to accept any of the
conditions set by the Attorney-General, or if the Minister administering the
Migration Act 1958, the relevant State Minister or the prisoner (or their
representative) withdraw their consent.
Division 3 – Enforcement of sentences
Clause 168: Sentence enforcement in Australia
This clause
gives the Attorney-General the power to determine that the sentence of
imprisonment made by the ICC be enforced against the prisoner once he or she is
transferred to Australia under this Part.
Clause 169: Duration and
nature of enforced sentence
This clause states that the sentence that
is enforced in Australia must not be harsher than the sentence imposed by the
ICC, and specifically the sentence must not be for a longer period or involve a
more severe deprivation of liberty than the sentence imposed by the
ICC.
Clause 170: Directions about enforcement of
sentences
This clause gives the Attorney-General the power to give
directions regarding the duration and legal nature of the sentence of
imprisonment that is to be enforced. These directions cannot make the sentence
harsher (clause 169), and the sentence can only be reduced if the ICC has
reviewed the sentence and decided that the sentence should be
reduced.
Subclause (3) gives the Attorney-General the specific power to
give directions regarding reviewing the mental condition and treatment of a
mentally impaired prisoner.
In considering a direction under this
clause, subclause (4) gives the Attorney-General a wide power to seek
information and consider opinions from any source that he or she thinks fit.
Subclause (4) also sets out sources to which the Attorney-General may have
particular regard.
Clause 171: No appeal or review of sentence of
imprisonment imposed by ICC or of sentence enforcement decisions of
Attorney-General
This clause prohibits an ICC prisoner transferred
under this Part from appealing against either the sentence imposed by the ICC or
the decision about the enforcement of the sentence by the Attorney-General.
Clause 172: ICC prisoner transferred to
Australia
Subclause (1) states that once an ICC prisoner has been
transferred to Australia, they are taken to be a federal prisoner and their
sentence of imprisonment is taken to be a federal sentence.
Subclause (2)
states that if the ICC prisoner served any part of their sentence before they
were transferred to Australia, that is taken to be served under the sentence
that is enforced in Australia. This means that any time that the prisoner has
served before being transferred to Australia is deducted from the time that they
have to spend in prison in Australia.
Subclause (3) states that an ICC
prisoner who has been transferred to Australia may be detained in a prison or
hospital or other place while serving their sentence of imprisonment. Subclause
(4) applies all relevant laws and practices in Australia relating to the
detention of prisoners to an ICC prisoner once they have been transferred to
Australia, provided that they do not conflict with this Part. Subclause (5)
gives examples of some of these practices including transfer of prisoner,
conditions and prison programs.
Subclause (6) specifically excludes
laws and practices relating to parole or other early-release schemes from
applying to an ICC prisoner. This is because the sentence that an ICC prisoner
serves in Australia can only be reduced in accordance with a decision by the ICC
(clause 170(2)).
Clause 173: Other matters relating to ICC
prisoners
Subclause (1) gives an ICC prisoner the right to
communicate confidentially with the ICC.
Subclause (2) gives a Judge or
other staff of the ICC the right to visit an ICC prisoner without anyone else
being present, except for a representative of the ICC prisoner.
Subclause
(3) states that the Attorney-General must inform the ICC if the ICC prisoner is
transferred from a prison to a hospital or other place, or from one hospital or
other place to another.
Clause 174: Pardon, amnesty or commutation of
sentences imposed on ICC prisoners transferred to Australia
This
clause provides that an ICC prisoner who is serving their sentence in Australia
may be pardoned, granted an amnesty or have their sentence of imprisonment
commuted if that would be available for an offence against Australian law, and
if the ICC agrees.
If the ICC notifies the Attorney-General that the ICC
prisoner may be pardoned, granted an amnesty or have their sentence commuted,
then the Attorney-General must make an order that the ICC prisoner be released
from the imprisonment ordered by the ICC if an order for the pardon, amnesty or
commutation of the sentence is made. This allows the ICC to give Australia the
discretion as to whether to grant the amnesty, pardon or commutation of
sentence.
If the ICC notifies the Attorney-General that the ICC has
overturned the prisoner’s conviction, or that the prisoner has been
pardoned by the ICC or had their sentence commuted by the ICC then the
Attorney-General must order that the ICC prisoner be released from the
imprisonment ordered by the ICC. In these cases, the ICC has already either
overturned the conviction, pardoned the prisoner or commuted the sentence and
Australia must give effect to this.
Clause 175: ICC prisoner may apply
to be transferred from Australia to a foreign country
This clause
gives an ICC prisoner who has been transferred to Australia the right to apply
to the ICC to be transferred from Australia to another country to serve the
remainder of his or her sentence. The ICC will then decide whether to change
the state in which the prisoner is to be detained under Article 104 of the
Statute. The prisoner will continue to serve their sentence in Australia unless
and until the ICC orders that the prisoner be transferred to another
state.
Clause 176: How ICC prisoner is to be
transferred
This clause states that if the ICC orders that an ICC
prisoner is to be transferred to another state to serve the remainder of their
sentence, then the Attorney-General may issue a warrant authorising the transfer
of the prisoner to the foreign state for this purpose. Subclause (4) sets out
the contents of the warrant.
Clause 177: Special rules in certain
cases
Subclause (1)(a) states that an ICC prisoner who is serving a
sentence in Australia may be extradited to another country pursuant to the
Extradition Act 1988 on release from their sentence, or during their
sentence for a temporary period.
Subclause (1)(b) states that an ICC
prisoner who is serving a sentence in Australia may be required to remain in
Australia after the completion of the sentence imposed by the ICC to serve a
sentence that has been imposed on the prisoner under Australian law.
The
ICC must consent if the extradition (under subclause (1)(a)) or the prosecution
or punishment (under subclause (1)(b)) is related to conduct that occurred
before Australia was designated by the ICC as the country where the prisoner
would serve their sentence (under clause 162(1)(c)). This consent is not
required if the prisoner has been released from prison and voluntarily remains
in Australia for more than 30 days, or leaves Australia and voluntarily
returns.
Clause 178: Extradition of escaped ICC
prisoner
Subclause (1) applies the Extradition Act 1988 to a
situation where a person who has been imprisoned in a foreign country by the ICC
escapes and is found in Australia, and that foreign country requests that
Australia surrender the person.
Subclause (2) allows the Attorney-General
to request the extradition of a person under the Extradition Act 1988 if
that person was serving a sentence from the ICC in an Australian prison and
escapes to another country.
Part 13 – Requests by Australia to ICC
Clauses 179 and 180: Application of Part and Request by
Attorney-General
These clauses authorise the Attorney-General to
request assistance from the ICC in connection with an investigation or
prosecution that is being undertaken in Australia regarding conduct which is a
crime under the ICC Statute or is an indictable offence in Australia. Such
assistance could include obtaining statements, documents or other evidence that
has been gathered during an ICC investigation or trial, or questioning people
detained by the ICC.
Part 14 – Miscellaneous
Clause 181: Attorney-General’s decisions in relation to
certificates to be final
This clause prevents any review of or
challenge to the decision by the Attorney-General to issue, or not to issue, a
certificate under clauses 22 or 29 in any court other than the High Court
through the prerogative writ provisions in Section 75 of the
Constitution.
Clause 182: Arrest of persons escaping from custody or
contravening conditions of recognisances
Subclauses (1) and (2)
authorise a police officer to re-arrest a person who has escaped custody which
was authorised under this Act or has breached (or is about to breach) a
condition of their bail, even if the officer does not have a warrant.
Subclauses (3) and (4) state that the officer must bring the person
before a magistrate as soon as practicable. If the magistrate is satisfied that
the person has escaped from custody which was authorised under this Act or has
breached (or is about to breach) a condition of their bail then the magistrate
may issue a warrant to return the person to custody.
Clause 183:
Aiding persons to escape, etc.
This clause applies the provisions of
the Crimes Act 1914 (s. 46 – Aiding prisoner to escape; s. 47A -
Rescuing a prisoner from custody etc.; and s. 48 - Harbouring etc. an
escapee) which cover rescuing, aiding the escape of or harbouring a criminal to
persons who rescue, aid the escape of or harbour a person who is in custody
under this Act or has been arrested pursuant to this Act.
Clause 184:
Cost of execution of requests
This clause states that the
Commonwealth must pay the cost of dealing with a request for cooperation, except
for the costs that the Statute provides that the ICC will pay. The costs that
the ICC will pay under the Statute are the cost of:
• travel and
security of witnesses or experts;
• travel and security if an
Australian prisoner is temporarily transferred to assist the ICC (see clause
73);
• interpretation, translation and transcription;
• any
reports requested by the ICC; and
• transport of a person being
surrendered to the ICC (and associated costs).
If there are extraordinary
costs associated with executing a request for cooperation, Australia can consult
with the ICC about who should pay those costs.
This clause allows the Attorney-General to grant legal or financial
assistance to a person if they are going to be involved in a legal proceeding
under this Act, including giving evidence or producing documents and proceedings
related to detention under this Act.
This clause permits the Commonwealth to make arrangement with the States,
Territories and Norfolk Island regarding the administration of this Act. Any
such arrangement must be published in the Government Gazette.
This clause allows the Attorney-General to delegate certain function or
powers that he or she has under this Act to senior officers of the
Attorney-General’s Department. The Attorney-General can delegate any of
his or her powers or functions except for those relating to a request for
cooperation that may raise problems with Australia’s international
obligations to a foreign country (clause 13), the arrest and surrender of
persons to the ICC (Part 3), the protection of Australia’s national
security interests (Part 8) and the enforcement of ICC sentences in Australia
(Part 12).
This clause provides for a general regulation making power, but also
specifies that regulations may be made in respect of the information that may be
provided to ICC prisoners regarding the enforcement of their sentences in
Australia. The regulations may also create offences against the regulations,
but the penalty may not exceed a fine of 10 penalty units (which is currently a
maximum penalty of $1,100).
Clause 189: Annual report
This
clause obliges the Department (meaning the Attorney-General’s Department -
see section 19A of the Acts Interpretation Act 1901) to publish an annual
report on the ICC. This report will be tabled in Parliament as an appendix to
the Annual Report of the Attorney-General’s Department that is required
under section 63 of the Public Service Act 1999. The Department will
consult with other Departments where relevant in the preparation of the
report.
This report will cover the operation of this Act, the operation
of the ICC and the effect of the operations of the ICC on Australia’s
legal system. Such a report will allow Parliament to monitor the activities of
the ICC to ensure its consistency with Australia’s national interest.