16   Application of Part

                   This Part applies to a request for arrest and surrender, or a request for provisional arrest, of a person.

17   Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued

                   If a request is made for arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58 of the Statute, the request must contain or be supported by:

                     (a)  information describing the person sought, being information sufficient to identify the person; and

                     (b)  information as to the person’s probable location; and

                     (c)  a copy of the warrant of arrest, authenticated by the ICC; and

                     (d)  any other documents, statements or information required by or under the regulations.

18   Documentation for request for arrest and surrender of person already convicted

                   If a request is made for arrest and surrender of a person who has already been convicted, the request must contain or be supported by:

                     (a)  a copy of any warrant of arrest for the person, authenticated by the ICC; and

                     (b)  a copy of the judgment of conviction, authenticated by the ICC; and

                     (c)  information to demonstrate that the person sought is the person referred to in the judgment of conviction; and

                     (d)  if the person sought has been sentenced:

                              (i)  a copy of the sentence imposed, authenticated by the ICC; and

                             (ii)  in the case of a sentence of imprisonment—a statement of any period already served and the period remaining to be served.

19   Documentation for request for provisional arrest

                   If a request is made for provisional arrest of a person, the request must contain or be supported by:

                     (a)  information describing the person sought, being information sufficient to identify the person; and

                     (b)  information as to the person’s probable location; and

                     (c)  a concise statement of:

                              (i)  the crimes within the jurisdiction of the ICC for which the person’s arrest is requested; and

                             (ii)  the facts that are alleged to constitute those crimes, including, where possible, the dates when, and the locations at which, the crimes are alleged to have been committed; and

                     (d)  a statement of the existence of a warrant of arrest, or of a judgment of conviction, against the person sought; and

                     (e)  a statement that a request for surrender of the person will follow.

20   Arrest following request for arrest and surrender

             (1)  Subject to section 22, if:

                     (a)  the Attorney-General receives a request for arrest and surrender of a person; and

                     (b)  Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

             (2)  If the Attorney-General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

             (3)  A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

             (4)  After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

21   Arrest following request for provisional arrest

             (1)  Subject to section 22, if:

                     (a)  the Attorney-General receives a request for provisional arrest of a person; and

                     (b)  Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

             (2)  If the Attorney-General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

             (3)  After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

22   Certificate by Attorney-General

                   The Attorney-General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney-General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

23   Remand

             (1)  If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

                     (a)  give to the person under arrest a written notice that:

                              (i)  specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and

                             (ii)  describes the conduct that is alleged to constitute that crime; and

                     (b)  bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

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

                     (a)  the person is the person specified in the warrant; and

                     (b)  the person was arrested in accordance with this Act; and

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

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

             (4)  If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney-General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

             (5)  The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

             (6)  Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

                     (a)  the gravity of the alleged crimes within the jurisdiction of the ICC;

                     (b)  whether there are urgent and exceptional circumstances that favour the grant of bail;

                     (c)  whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

             (7)  Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.

24   Procedure following application for bail

             (1)  If an application for bail is made, the Attorney-General must notify the ICC.

             (2)  The Attorney-General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

             (3)  Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

             (4)  If the person is granted bail, the Attorney-General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

             (5)  This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.

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

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

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

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

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

26   Release from remand after certain periods

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

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

                     (b)  the person is, under this Division, on remand 60 days after the day on which the person was arrested; and

                     (c)  a notice has not been given under subsection 20(1) in relation to the person.

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

                     (a)  order the release of the person from custody; or

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

as the case requires.

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

                     (a)  the person must be brought before a magistrate; and

                     (b)  the magistrate must:

                              (i)  order the release of the person from custody; or

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

                            as the case requires.

27   Application for search warrants

             (1)  If:

                     (a)  a person is arrested under a warrant issued under section 20 or 21; and

                     (b)  a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

             (2)  If:

                     (a)  a person is arrested under a warrant issued under section 20 or 21; and

                     (b)  a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

             (3)  For the purposes of this section, the applicable period is:

                     (a)  if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or

                     (b)  otherwise—72 hours.

Note:       Part 6 deals with search warrants.

28   Surrender warrants

             (1)  Except where this Division otherwise provides, if a person is remanded under Division 3, the Attorney-General may, subject to section 29, issue a warrant for the surrender of the person.

             (2)  The surrender warrant must be in writing in the statutory form.

29   Certificate by Attorney-General

                   The Attorney-General must not issue a warrant for the surrender of a person for a crime unless the Attorney-General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

30   Surrender warrant may take effect at later date

             (1)  This section applies if, apart from this subsection, the Attorney-General would be required to issue a surrender warrant for a crime within the jurisdiction of the ICC in respect of a person who is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against Australian law.

             (2)  The Attorney-General may, after consultation with the ICC, do either of the following:

                     (a)  instead of issuing a surrender warrant that has an immediate effect, issue a surrender warrant that is to come into effect when the person ceases to be liable to be detained;

                     (b)  issue a surrender warrant that has a temporary operation in accordance with conditions agreed with the ICC.

31   Refusal of surrender

             (1)  The Attorney-General must refuse a request for surrender of a person if the ICC determines that the case is inadmissible and subsection 33(4), 35(3) or 36(3) applies.

             (2)  The Attorney-General may refuse a request for surrender of a person if:

                     (a)  there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies; or

                     (b)  there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to different conduct, and subsection 40(3) applies.

             (3)  The restrictions on extradition specified in the Extradition Act 1988 do not apply in relation to a request for surrender of a person.

32   Postponement of execution of request for surrender

             (1)  The Attorney-General may postpone the execution of a request for surrender of a person for a crime within the jurisdiction of the ICC at any time before the person is surrendered if, and only if:

                     (a)  a determination on admissibility of the kind specified in section 33, 35 or 36 is pending before the ICC; or

                     (b)  the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct that constituted the crime, as provided in section 34; or

                     (c)  the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.

             (2)  If the Attorney-General postpones the execution of the request, the postponement may be for a reasonable period and may, if the Attorney-General considers it desirable, be extended from time to time.

             (3)  A decision by the Attorney-General to postpone the execution of a request:

                     (a)  does not limit or affect the detention of a person under a warrant issued under this Part; and

                     (b)  does not affect the validity of any act done or any warrant issued under this Part before the decision was made.

             (4)  However, if:

                     (a)  the person applies to an appropriate court to be released; and

                     (b)  the court is satisfied that reasonable notice of the intention to make the application has been given to the Attorney-General;

the court may, unless the person is liable to be detained under any other order or other sufficient cause is shown against the release, order the release of the person from the place where the person is detained.

33   Previous proceedings against person sought

             (1)  This section applies if the person whose surrender is sought alleges to the Attorney-General that:

                     (a)  the case is one to which paragraph 1 of article 20 of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or

                     (b)  the person has been tried by another court for conduct also proscribed under article 6, 7 or 8 of the Statute and the case is not one to which paragraph 3(a) or (b) of article 20 of the Statute applies.

             (2)  The Attorney-General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.

             (3)  If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.

             (4)  If the ICC has determined that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground of the person’s previous conviction, acquittal or trial, as the case may be, in respect of the relevant conduct.

             (5)  If an admissibility determination is pending, the Attorney-General may postpone the execution of a request until the ICC has made its determination.

34   Ongoing Australian investigation or prosecution involving different conduct

             (1)  This section applies if a request for surrender of a person is made that would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct constituting the crime within the jurisdiction of the ICC to which the request relates.

             (2)  The Attorney-General may, after consultation with the ICC:

                     (a)  proceed with the execution of the request despite the Australian investigation or prosecution; or

                     (b)  postpone the execution of the request until the Australian investigation or prosecution has been finally disposed of.

             (3)  Nothing in this section limits or affects section 30 (which allows the Attorney-General to issue a surrender warrant that comes into effect at a later date if a person is serving a sentence for a different offence against Australian law).

35   Person being investigated or prosecuted in Australia for same conduct

             (1)  This section applies if:

                     (a)  a request for surrender of a person is made; and

                     (b)  the request relates to conduct that would constitute an offence under Australian law; and

                     (c)  either:

                              (i)  the conduct is being investigated or prosecuted in Australia; or

                             (ii)  the conduct has been investigated in Australia, and a decision was made not to prosecute the person sought; and

                     (d)  a challenge to the admissibility of the case is being or has been made to the ICC under paragraph 2(b) of article 19 of the Statute.

             (2)  The Attorney-General may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

             (3)  If the ICC determines that the case is inadmissible, surrender must be refused.

             (4)  If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

36   Challenges to admissibility in other cases

             (1)  This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute, other than a challenge of the kind referred to in section 33 or 35.

             (2)  The Attorney-General may, pending a determination by the ICC on the admissibility challenge, postpone the execution of a request under this Part in respect of the crime within the jurisdiction of the ICC to which the challenge relates.

             (3)  If the ICC determines that the case to which the request relates is inadmissible, surrender must be refused.

             (4)  If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

37   Request from ICC and a foreign country relating to same conduct

                   If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney-General:

                     (a)  must notify the ICC and the foreign country of that fact; and

                     (b)  must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.

38   Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

             (1)  This section applies if:

                     (a)  section 37 applies; and

                     (b)  the foreign country is a party to the Statute.

             (2)  Priority must be given to the request from the ICC if:

                     (a)  the ICC has, under article 18 or 19 of the Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country in respect of its request for extradition; or

                     (b)  the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.

             (3)  If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:

                     (a)  the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but

                     (b)  no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

             (4)  Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.

39   Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

             (1)  This section applies if:

                     (a)  section 37 applies; and

                     (b)  the foreign country is not a party to the Statute.

             (2)  Priority must be given to the request for surrender if:

                     (a)  Australia is not under an international obligation to extradite the person to the foreign country; and

                     (b)  the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

             (3)  The request for extradition by the foreign country may continue to be dealt with if:

                     (a)  Australia is not under an international obligation to extradite the person to the foreign country; and

                     (b)  the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.

             (4)  Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

             (5)  Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.

             (6)  If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.

             (7)  In making the determination under subsection (6), the Attorney-General must consider all relevant matters, including, but not limited to:

                     (a)  the respective dates of the requests; and

                     (b)  the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

                     (c)  the possibility of subsequent surrender between the ICC and the foreign country.

40   Request from ICC and foreign country relating to different conduct

             (1)  If a request for surrender of a person is made and a foreign country requests the extradition of the person for conduct other than the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney-General must determine whether the person is to be surrendered or is to be extradited to the foreign country.

             (2)  If Australia is not under an international obligation to extradite the person to the foreign country, priority must be given to the request from the ICC.

             (3)  If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.

             (4)  In making the determination under subsection (3), the Attorney-General must consider all relevant matters, including, but not limited to, the matters specified in subsection 39(7), but must give special consideration to the relative nature and gravity of the conduct for which surrender and extradition are sought.

41   Notification of decision on extradition to foreign country

             (1)  If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney-General subsequently refuses to extradite the person to the foreign country under the Extradition Act 1988 , the Attorney-General must notify the ICC of the refusal.

             (2)  The obligation in this section is in addition to the requirement of section 14 for the Attorney-General to respond formally to the request from the ICC.

42   Detention following surrender warrants

             (1)  If the Attorney-General issues a surrender warrant in relation to a person who is on bail, the person must be brought as soon as practicable before a magistrate in the State or Territory in which the person is on remand.

             (2)  The magistrate must remand the person in custody for such period or periods as may be necessary to enable the warrant to be executed.

43   Content of surrender warrants

             (1)  A surrender warrant in relation to the person (the relevant person ) must:

                     (a)  require the person in whose custody the relevant person is being held to release the relevant person into the custody of a police officer; and

                     (b)  authorise the police officer to transport the relevant person in custody, and, if necessary or convenient, to detain the relevant person in custody, for the purpose of enabling the relevant person:

                              (i)  to be placed in the custody of a specified person who is an officer of the ICC or other person authorised by the ICC; and

                             (ii)  to be transported to a place specified by the ICC; and

                     (c)  authorise the specified person to transport the relevant person in custody to a place specified by the ICC for the purpose of surrendering the relevant person to a person appointed by the ICC to receive the person.

             (2)  A place referred to in paragraph (1)(b) or (c) may be a place in or outside Australia.

44   Execution of surrender warrants

                   Subject to this Division, a surrender warrant must be executed according to its terms.

45   Release from remand

             (1)  If:

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

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

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

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

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

             (2)  However, if the Court is satisfied that the surrender warrant has not been executed within the period of 21 days, or since the person last made an application under subsection (1), as the case may be:

                     (a)  because to do so would have endangered the person’s life, or would have prejudiced the person’s health; or

                     (b)  for any other reasonable cause;

the Court must not order that the person be released from custody.

46   Effect of surrender to ICC on person’s terms of imprisonment

             (1)  If, at the time when a person was surrendered in connection with a crime within the jurisdiction of the ICC, the person was serving a sentence of imprisonment in respect of an offence against a law of the Commonwealth or of a Territory, or was otherwise subject to detention under a law of the Commonwealth or of a Territory:

                     (a)  any period spent by the person in custody in connection with the surrender warrant; and

                     (b)  subject to subsection (2), any period spent by the person in custody in connection with detention by, or on the order of, the ICC in respect of the crime;

are to be counted as periods served towards the sentence of imprisonment or period of detention.

             (2)  If the person is convicted of the crime within the jurisdiction of the ICC, the period spent by the person in custody serving a sentence of imprisonment imposed by the ICC for the crime is not to be counted as a period towards the sentence of imprisonment or period of detention referred to in subsection (1).

             (3)  A reference in this section to a period spent in custody includes a reference to a period spent in custody outside Australia.

47   Expiry of Australian sentences while under ICC detention

                   If:

                     (a)  at the time when a person was surrendered, the person was serving a sentence of imprisonment in respect of an offence against an Australian law, or was otherwise subject to detention under an Australian law; and

                     (b)  each such sentence of imprisonment that the person was serving, or each such period of detention to which the person was subject, at that time expires while the person is being detained by, or on the order of, the ICC;

the Attorney-General must without delay inform the ICC of the expiry.

48   Waiver of rule of speciality

             (1)  If the ICC requests Australia under paragraph 2 of article 101 of the Statute to waive the requirements of paragraph 1 of that article in respect of a person surrendered by Australia, the Attorney-General may waive the requirements accordingly.

             (2)  Before deciding whether to waive the requirements, the Attorney-General may request the ICC to provide additional information in accordance with article 91 of the Statute.