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Schedule 1—Assistance to international courts and tribunals

Schedule 1 Assistance to international courts and tribunals

Part 1 Lawfully obtained material

International Criminal Court Act 2002

1  Section 4

Insert:

interception warrant information has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

law enforcement agency has the same meaning as in the Surveillance Devices Act 2004 .

law enforcement officer has the same meaning as in the Surveillance Devices Act 2004 .

lawfully intercepted information has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

lawfully obtained in Australia has a meaning affected by subsection 69A(3).

2  After Division 5 of Part 4

Insert:

Division 5A Providing law enforcement agency material

69A   Authorising provision of material obtained by law enforcement agencies

             (1)  The Attorney-General may authorise, in writing, the provision of material to the ICC if:

                     (a)  the ICC has requested the material; and

                     (b)  the Attorney-General is satisfied that:

                              (i)  the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

                             (ii)  if the material is or includes lawfully intercepted information or interception warrant information—the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and

                            (iii)  the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency.

             (2)  The authorisation may:

                     (a)  specify the uses to which the material can be put by the ICC; and

                     (b)  include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the ICC.

             (3)  Material lawfully obtained in Australia includes:

                     (a)  material obtained from individuals or entities by consent; and

                     (b)  material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.

International War Crimes Tribunals Act 1995

3  Section 4

Insert:

law enforcement agency has the same meaning as in the Surveillance Devices Act 2004 .

law enforcement officer has the same meaning as in the Surveillance Devices Act 2004 .

lawfully obtained in Australia has a meaning affected by subsection 25A(3).

4  Before Division 1 of Part 4

Insert:

Division 1AA Providing law enforcement agency material

25A   Authorising provision of material obtained by law enforcement agencies

             (1)  The Attorney-General may authorise, in writing, the provision of material to a Tribunal if:

                     (a)  the Tribunal has requested the material; and

                     (b)  the Attorney-General is satisfied that:

                              (i)  the request relates to a proceeding before, or an investigation conducted by, the Tribunal; and

                             (ii)  the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency.

             (2)  The authorisation may:

                     (a)  specify the uses to which the material can be put by the Tribunal; and

                     (b)  include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the Tribunal.

             (3)  Material lawfully obtained in Australia includes:

                     (a)  material obtained from individuals or entities by consent; and

                     (b)  material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.

Surveillance Devices Act 2004

5  Subsection 6(1)

Insert:

International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002 .

War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995 .

6  At the end of subsection 45(4)

Add:

                     (h)  the communication of information for the purpose of providing it to the International Criminal Court, if this has been authorised under section 69A of the International Criminal Court Act 2002 ; or

                      (i)  the communication of information for the purpose of providing it to a War Crimes Tribunal, if this has been authorised under section 25A of the International War Crimes Tribunals Act 1995 .

Note:       These paragraphs will be added after those substituted for paragraph 45(4)(f) of the Surveillance Devices Act 2004 (see Part 6 of this Schedule).

Telecommunications (Interception and Access) Act 1979

7  Subsection 5(1)

Insert:

International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002 .

War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995 .

8  After paragraph 68(l)

Insert:

                    (la)  if the Attorney-General has authorised the provision of the information to the International Criminal Court under section 69A of the International Criminal Court Act 2002 —to:

                              (i)  that Court; or

                             (ii)  the Secretary of the Department for the purpose of providing the information to that Court; and

                    (lb)  if the Attorney-General has authorised the provision of the information to a War Crimes Tribunal under section 25A of the International War Crimes Tribunals Act 1995 —to:

                              (i)  that Tribunal; or

                             (ii)  the Secretary of the Department for the purpose of providing the information to that Tribunal; and

9  Section 68A

Repeal the section, substitute:

68A   Communicating information obtained by the Secretary

             (1)  This section applies to information communicated to the Secretary of the Department as described in an item of the following table:

 

Information to which this section applies

Item

Information communicated under this provision:

For the purpose of providing it to this entity:

1

paragraph 68(l)

the foreign country concerned

2

paragraph 68(la)

the International Criminal Court

3

paragraph 68(lb)

the War Crimes Tribunal concerned

             (2)  Each of the following:

                     (a)  the Secretary of the Department;

                     (b)  a person authorised by the Secretary;

                     (c)  a person or other entity to whom the information has been communicated under this subsection;

may communicate the information to another person or entity for purposes connected with providing the information to the entity mentioned in that table item.

10  Section 102B

Repeal the section, substitute:

102B   Report regarding international requests

                   The report must set out the number of occasions on which lawfully intercepted information or interception warrant information was communicated to any of the following:

                     (a)  a foreign country under paragraph 68(l) or section 68A;

                     (b)  the International Criminal Court under paragraph 68(la) or section 68A;

                     (c)  a War Crimes Tribunal under paragraph 68(lb) or section 68A.

11  Application and transitional provisions

(1)       The amendments made by this Part apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request.

(2)       The amendments so apply:

                     (a)  whether the material requested was lawfully obtained in Australia before, on or after that commencement; and

                     (b)  whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

(3)       An authorisation that:

                     (a)  was made, before the commencement of this item, under subsection 68A(1) of the Telecommunications (Interception and Access) Act 1979 as in force before that commencement; and

                     (b)  was in force immediately before that commencement;

continues in force (and may be dealt with) after that commencement as if it had been made under subsection 68A(2) of that Act as amended by this Part.

Part 2 Producing documents or other articles

International Criminal Court Act 2002

12  Subsection 66(2)

Omit “the magistrate must”, substitute “a magistrate must”.

13  Subsection 66(2)

Omit “to the magistrate”, substitute “to that magistrate”.

14  Subsection 66(3)

Omit “the magistrate may”, substitute “a magistrate may”.

15  Subsection 66(3)

Omit “the magistrate to”, substitute “that magistrate to”.

16  Application of amendments

            The amendments of the International Criminal Court Act 2002 made by this Part apply in relation to the following:

                     (a)  a requirement to produce documents or other articles that is made on or after the commencement of this item;

                     (b)  a requirement to produce documents or other articles that is made before the commencement of this item if:

                              (i)  the documents or other articles had not been produced immediately before the commencement of this item; or

                             (ii)  the documents or other articles were produced before the commencement of this item but, immediately before that commencement, the documents (or copies of the documents) or other articles had not been sent to the Attorney-General as required by subsection 66(2) or (3) of that Act.

International War Crimes Tribunals Act 1995

17  Subsection 28(2)

Omit “the magistrate must”, substitute “a magistrate must”.

18  Subsection 28(2)

Omit “to the magistrate”, substitute “to that magistrate”.

19  Subsection 28(3)

Omit “the magistrate may”, substitute “a magistrate may”.

20  Subsection 28(3)

Omit “the magistrate to”, substitute “that magistrate to”.

21  Application of amendments

            The amendments of the International War Crimes Tribunals Act 1995 made by this Part apply in relation to the following:

                     (a)  a requirement to produce documents or other articles that is made on or after the commencement of this item;

                     (b)  a requirement to produce documents or other articles that is made before the commencement of this item if:

                              (i)  the documents or other articles had not been produced immediately before the commencement of this item; or

                             (ii)  the documents or other articles were produced before the commencement of this item but, immediately before that commencement, the documents (or copies of the documents) or other articles had not been sent to the Attorney-General as required by subsection 28(2) or (3) of that Act.

Part 3 Covert access to stored communications

International Criminal Court Act 2002

22  Section 4

Insert:

carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5-4 or 5-4A of that Act).

23  Section 4 (paragraph (b) of the definition of police officer )

Omit “police force of a State or Territory”, substitute “police force or police service of a State”.

24  Section 4

Insert:

stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

25  After Division 11 of Part 4

Insert:

Division 11A Stored communications

78A   Authorising application for a stored communications warrant

                   The Attorney-General may authorise, in writing, the Australian Federal Police, or the police force or police service of a State, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if:

                     (a)  the Attorney-General is satisfied that:

                              (i)  an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and

                             (ii)  there are reasonable grounds to believe that stored communications relevant to the investigation or proceeding are held by a carrier; and

                     (b)  the ICC has requested the Attorney-General to arrange for access to the stored communications.

Note:          Information obtained under the warrant may only be communicated to the ICC on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979 .

International War Crimes Tribunals Act 1995

26  Section 4

Insert:

carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5-4 or 5-4A of that Act).

27  Section 4 (paragraph (b) of the definition of police officer )

Omit “police force of a State or Territory”, substitute “police force or police service of a State”.

28  Section 4

Insert:

stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

29  After Division 2 of Part 4

Insert:

Division 2A Stored communications

34A   Authorising application for a stored communications warrant

                   The Attorney-General may authorise, in writing, the Australian Federal Police or the police force or police service of a State to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if:

                     (a)  the Attorney-General is satisfied that:

                              (i)  a proceeding is before, or an investigation is being conducted by, a Tribunal; and

                             (ii)  there are reasonable grounds to believe that stored communications relevant to the proceeding or investigation are held by a carrier; and

                     (b)  the Tribunal has requested the Attorney-General to arrange for access to the stored communications.

Note:          Information obtained under the warrant may only be communicated to the Tribunal on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979 .

Telecommunications (Interception and Access) Act 1979

30  Subsection 5(1)

Insert:

access request has the meaning given by subsection 107P(1).

crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002 .

international assistance application means an application for a stored communications warrant made as a result of:

                     (a)  an authorisation under section 15B of the Mutual Assistance in Criminal Matters Act 1987 ; or

                     (b)  an authorisation under section 78A of the International Criminal Court Act 2002 ; or

                     (c)  an authorisation under section 34A of the International War Crimes Tribunals Act 1995 .

international offence has the meaning given by subsection 162(3).

31  Subsection 5(1) (definition of mutual assistance application )

Repeal the definition.

32  Subsection 5(1)

Insert:

serious foreign contravention means:

                     (a)  a contravention of a law of a foreign country that is punishable by a maximum penalty of:

                              (i)  imprisonment for 3 years or more, imprisonment for life or the death penalty; or

                             (ii)  a fine of an amount that is at least equivalent to 900 penalty units; or

                     (b)  a crime within the jurisdiction of the ICC; or

                     (c)  a War Crimes Tribunal offence.

War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995 .

33  Section 5EA

Repeal the section.

34  Section 107G

After “contravention of certain foreign laws”, insert “or to certain international offences”.

35  Section 107G

After “foreign country”, insert “, the International Criminal Court or a War Crimes Tribunal”.

36  Section 107P

Repeal the section, substitute:

107P   Condition for giving a foreign preservation notice

             (1)  An entity mentioned in the following table may request the Australian Federal Police to arrange for the preservation of stored communications that:

                     (a)  relate to a specified person or specified telecommunications service; and

                     (b)  are held by a carrier; and

                     (c)  are relevant to an investigation, investigative proceeding, or proceeding relating to a serious foreign contravention;

if the entity intends to make a request (an access request ) under a provision mentioned in the table to the Attorney-General to arrange for access to those stored communications.

 

Requesting access to stored communications

Item

This entity:

May make an access request under:

1

a foreign country

paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987

2

the International Criminal Court

paragraph 78A(b) of the International Criminal Court Act 2002

3

a War Crimes Tribunal

paragraph 34A(b) of the International War Crimes Tribunals Act 1995

             (2)  The request by the entity to the Australian Federal Police must:

                     (a)  be in writing; and

                     (b)  name the entity or the entity’s authority concerned with the serious foreign contravention; and

                     (c)  specify the serious foreign contravention that is the subject of the investigation, investigative proceeding or proceeding; and

                     (d)  specify information identifying the stored communications to be preserved and the relationship between those communications and the serious foreign contravention; and

                     (e)  specify any information the entity has that identifies the carrier that holds the stored communications; and

                      (f)  if the stored communications relate to a specified person—specify any information the entity has that identifies the telecommunications service to which the stored communications relate; and

                     (g)  specify the reasons why the stored communications need to be preserved; and

                     (h)  specify that the entity intends to make an access request for the stored communications.

37  Subparagraph 107Q(b)(ii)

Repeal the subparagraph, substitute:

                             (ii)  if a stored communications warrant authorising access to the stored communications covered by the notice is issued as a result of the access request—when the warrant ceases to be in force.

38  Paragraph 107R(1)(a)

Repeal the paragraph, substitute:

                     (a)  an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and

39  Paragraph 107R(1)(c)

Repeal the paragraph, substitute:

                     (c)  during the period of 180 days starting on the day the carrier was given the notice, the entity did not make an access request to the Attorney-General to arrange for access to those communications;

40  Paragraph 107R(2)(a)

Repeal the paragraph, substitute:

                     (a)  an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and

41  Paragraph 107R(2)(c)

Repeal the paragraph, substitute:

                     (c)  the entity makes an access request to the Attorney-General to arrange for access to those communications; and

42  Paragraph 107R(2)(d)

Omit “request”, substitute “access request”.

43  Paragraph 107R(3)(a)

Repeal the paragraph, substitute:

                     (a)  an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and

44  Paragraph 107R(3)(c)

Omit “foreign country”, substitute “entity”.

45  Paragraph 116(1)(d)

Repeal the paragraph, substitute:

                     (d)  information that would be likely to be obtained by accessing those stored communications under a stored communications warrant would be likely to assist in connection with:

                              (i)  unless subparagraph (ii) applies—the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or

                             (ii)  for an international assistance application—the investigation, investigative proceeding, or proceeding by the entity to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and

46  Subsection 116(2)

Omit “In the case of an application other than a mutual assistance application”, substitute “For an application other than an international assistance application”.

47  Subsection 116(2A)

Omit “In the case of a mutual assistance application”, substitute “For an international assistance application”.

48  Paragraph 116(2A)(c)

Repeal the paragraph, substitute:

                     (c)  how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, investigative proceeding, or proceeding, to the extent that this is possible to determine from information obtained from the entity to which the application relates.

49  Subsection 139(2)

Omit “a mutual assistance application”, substitute “an international assistance application”.

50  Paragraph 139(2)(e)

Repeal the paragraph, substitute:

                     (e)  an authorisation under any of the following provisions in respect of the information:

                              (i)  subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987 ;

                             (ii)  section 69A of the International Criminal Court Act 2002 ;

                            (iii)  section 25A of the International War Crimes Tribunals Act 1995 .

51  Subsection 139(4A)

Repeal the subsection, substitute:

          (4A)  In the case of information obtained by the agency through the execution of a warrant issued as a result of an international assistance application, the purposes are purposes connected with:

                     (a)  providing the information to the entity to which the application relates, or to an appropriate authority of that entity; or

                     (b)  the keeping of records by the agency under Part 3-5.

52  Section 142A

Repeal the section, substitute:

142A   Communicating information obtained as a result of an international assistance application

             (1)  If information is obtained through the execution of a warrant issued as a result of an international assistance application, a person may only communicate the information to the entity to which the application relates on the following conditions:

                     (a)  that the information will only be used for the purposes for which the entity requested the information;

                     (b)  that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;

                     (c)  any other condition determined, in writing, by the Attorney-General.

             (2)  Subsection (1) has effect despite subsection 139(4A) and section 142.

             (3)  A determination under paragraph (1)(c) is not a legislative instrument.

53  Paragraph 151(1)(g)

Omit “mutual assistance, being a request to which a mutual assistance application”, substitute “international assistance, being a request to which an international assistance application”.

54  Paragraph 162(1)(c)

Omit “mutual assistance applications”, substitute “international assistance applications”.

55  Paragraph 162(1)(d)

Repeal the paragraph, substitute:

                     (d)  for each international offence for the agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence.

56  Paragraph 162(2)(ba)

Omit “mutual assistance applications”, substitute “international assistance applications”.

57  Paragraph 162(2)(e)

Repeal the paragraph, substitute:

                     (e)  for each international offence for each enforcement agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence.

58  At the end of section 162

Add:

             (3)  An international offence , for an enforcement agency, is:

                     (a)  an offence against a law of a foreign country; or

                     (b)  a crime within the jurisdiction of the ICC; or

                     (c)  a War Crimes Tribunal offence;

in respect of which a stored communications warrant was issued as a result of an international assistance application made by the agency during the year.

59  Section 163A

Repeal the section, substitute:

163A   Report regarding international requests

                   The report must set out the number of occasions on which lawfully accessed information or stored communications warrant information was communicated under subsection 139(1) or section 142 to any of the following:

                     (a)  a foreign country;

                     (b)  the International Criminal Court;

                     (c)  a War Crimes Tribunal;

for a purpose connected with an authorisation referred to in paragraph 139(2)(e).

60  Application and transitional provisions

(1)       The amendments made by this Part apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request.

(2)       The amendments made by this Part apply in relation to a request made to the Australian Federal Police by the ICC, a Tribunal or a foreign country:

                     (a)  on or after the commencement of this item; and

                     (b)  under section 107P of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Part).

(3)       The amendments so apply as a result of subitem (1) or (2):

                     (a)  whether the stored communications to which the request relates became stored communications before, on or after that commencement; and

                     (b)  whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

(4)       If:

                     (a)  a foreign country makes a request to which subitem (1) applies (the access request ); and

                     (b)  before the commencement of this item, the foreign country made a request (the preservation request ) under section 107P of the Telecommunications (Interception and Access) Act 1979 because the foreign country intended to make the access request;

the preservation request continues in existence (and may be dealt with) after that commencement as if it had been made under that section as amended by this Part.

(5)       A determination that:

                     (a)  was made, before the commencement of this item, under paragraph 142A(1)(c) of the Telecommunications (Interception and Access) Act 1979 (as in force before that commencement); and

                     (b)  was in force immediately before that commencement;

continues in force (and may be dealt with) after that commencement as if it had been made under that paragraph as amended by this Part.

Part 4 Historical telecommunications data

Telecommunications (Interception and Access) Act 1979

61  Subsection 5(1) (at the end of the definition of foreign law enforcement agency )

Add:

               ; or (c)  any other authority or person responsible to the International Criminal Court for investigating or prosecuting a crime within the jurisdiction of the ICC; or

                     (d)  any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.

62  Section 180A (heading)

Repeal the heading, substitute:

180A   Authorisations for access to existing information or documents—enforcing foreign or international laws

63  Subsection 180A(3)

Repeal the subsection, substitute:

             (3)  The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:

                     (a)  the enforcement of the criminal law of a foreign country; or

                     (b)  an investigation or prosecution of a crime within the jurisdiction of the ICC; or

                     (c)  an investigation or prosecution of a War Crimes Tribunal offence.

64  Subsection 180A(5)

Repeal the subsection, substitute:

             (5)  The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for:

                     (a)  the enforcement of the criminal law of a foreign country; or

                     (b)  an investigation or prosecution of a crime within the jurisdiction of the ICC; or

                     (c)  an investigation or prosecution of a War Crimes Tribunal offence.

65  Section 180C (heading)

Repeal the heading, substitute:

180C   Authorisations to disclose information or documents—enforcing foreign or international laws

66  Subsection 180C(2)

Repeal the subsection, substitute:

             (2)  The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for:

                     (a)  the enforcement of the criminal law of a foreign country; or

                     (b)  an investigation or prosecution of a crime within the jurisdiction of the ICC; or

                     (c)  an investigation or prosecution of a War Crimes Tribunal offence.

67  Subdivision C of Division 4A of Part 4-1 (heading)

Repeal the heading, substitute:

Subdivision C Conditions of disclosure to foreign law enforcement agencies

68  Section 180E (heading)

Repeal the heading, substitute:

180E   Disclosing information etc. to foreign countries or foreign law enforcement agencies

69  Subsection 180E(1)

After “foreign country” (wherever occurring), insert “or foreign law enforcement agency”.

70  Application of amendments

The amendments made by this Part apply in relation to a disclosure of information or documents on or after the commencement of this item:

                     (a)  whether the information or documents were acquired before, on or after that commencement; and

                     (b)  whether conduct, a crime or an offence to which the disclosure relates occurred before, on or after that commencement.

Part 5 Prospective telecommunications data

International Criminal Court Act 2002

71  Section 4

Insert:

communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

72  Before Division 12 of Part 4

Insert:

Division 11B Prospective telecommunications data

78B   Authorising an authorisation for the disclosure of prospective telecommunications data

             (1)  The Attorney-General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if:

                     (a)  the ICC has requested the Attorney-General to arrange for the disclosure of the information or documents; and

                     (b)  the information or documents come into existence during a period specified by the ICC, and which started on or after the day the request was made; and

                     (c)  the Attorney-General is satisfied that:

                              (i)  an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and

                             (ii)  the information or documents relate to the fact of a communication passing over a telecommunications system during that period.

Note:          The information or documents will not be disclosed unless they are reasonably necessary for the investigation or proceeding (see subsection 180B(3) of that Act).

             (2)  To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication.

International War Crimes Tribunals Act 1995

73  Section 4

Insert:

communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

74  Before Division 3 of Part 4

Insert:

Division 2B Prospective telecommunications data

34B   Authorising an authorisation for the disclosure of prospective telecommunications data

             (1)  The Attorney-General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if:

                     (a)  a Tribunal has requested the Attorney-General to arrange for the disclosure of the information or documents; and

                     (b)  the information or documents come into existence during a period specified by the Tribunal, and which started on or after the day the request was made; and

                     (c)  the Attorney-General is satisfied that:

                              (i)  a proceeding is before, or an investigation is being conducted by, the Tribunal; and

                             (ii)  the information or documents relate to the fact of a communication passing over a telecommunications system during a period specified in the Tribunal’s request.

Note:          The information or documents will not be disclosed unless they are reasonably necessary for the investigation or proceeding (see subsection 180B(3) of that Act).

             (2)  To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication.

Telecommunications (Interception and Access) Act 1979

75  Section 180B (heading)

Repeal the heading, substitute:

180B   Authorisations for access to prospective information or documents—enforcing international laws

76  Subsection 180B(3)

Repeal the subsection, substitute:

             (3)  The authorised officer must not make the authorisation unless:

                     (a)  the Attorney-General has authorised the making of the authorisation under a provision mentioned in an item of the following table; and

                     (b)  the authorised officer is satisfied that:

                              (i)  the disclosure is reasonably necessary for an investigation or proceeding referred to in that table item; and

                             (ii)  the disclosure is appropriate in all the circumstances.

 

Authorising access to prospective information or documents

Item

For Attorney-General authorisations under:

the investigation or proceeding is:

1

section 15D of the Mutual Assistance in Criminal Matters Act 1987

an investigation or proceeding relating to an offence against the law of a foreign country that:

(a) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(b) involves an act or omission that, if it had occurred in Australia, would be a serious offence

2

section 78B of the International Criminal Court Act 2002

an investigation or proceeding relating to a crime within the jurisdiction of the ICC

3

section 34B of the International War Crimes Tribunals Act 1995

an investigation or proceeding relating to a War Crimes Tribunal offence

77  Paragraph 180B(6)(a)

Repeal the paragraph, substitute:

                     (a)  reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and

78  Paragraph 180B(8)(a)

Repeal the paragraph, substitute:

                     (a)  reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and

79  Application of amendments

            The amendments made by this Part apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request;

whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

Part 6 Use of surveillance devices

International Criminal Court Act 2002

80  Section 4

Insert:

eligible law enforcement officer has the meaning given by subsection 79A(2).

81  After Division 12 of Part 4

Insert:

Division 12A Requests for surveillance devices

79A   Authorising applications for surveillance device warrants

             (1)  The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if:

                     (a)  the ICC has requested the Attorney-General to arrange for the use of a surveillance device; and

                     (b)  the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and

                     (c)  the Attorney-General is satisfied that the ICC has given appropriate undertakings for:

                              (i)  ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the ICC; and

                             (ii)  the destruction of a document or other thing containing information obtained as a result of the use of the device; and

                            (iii)  any other matter the Attorney-General considers appropriate.

Note:          The eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the Surveillance Devices Act 2004 ).

             (2)  An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004 .

International War Crimes Tribunals Act 1995

82  Section 4

Insert:

eligible law enforcement officer has the meaning given by subsection 32A(2).

83  After Division 1 of Part 4

Insert:

Division 1A Requests for surveillance devices

32A   Authorising applications for surveillance device warrants

             (1)  The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if:

                     (a)  a Tribunal has requested the Attorney-General to arrange for the use of a surveillance device; and

                     (b)  the Attorney-General is satisfied that a proceeding is before, or an investigation is being conducted by, the Tribunal; and

                     (c)  the Attorney-General is satisfied that the Tribunal has given appropriate undertakings for:

                              (i)  ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the Tribunal; and

                             (ii)  the destruction of a document or other thing containing information obtained as a result of the use of the device; and

                            (iii)  any other matter the Attorney-General considers appropriate.

Note:          The eligible law enforcement officer can only apply for the warrant if he or she reasonably suspects that the use of the device is necessary for the investigation or proceeding (see subsection 14(3A) of the Surveillance Devices Act 2004 ).

             (2)  An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004 .

Surveillance Devices Act 2004

84  Subsection 6(1)

Insert:

international assistance application means an application for a surveillance device warrant made under an international assistance authorisation.

international assistance authorisation means:

                     (a)  an authorisation under subsection 15CA(1) of the Mutual Assistance in Criminal Matters Act 1987 ; or

                     (b)  an authorisation under subsection 79A(1) of the International Criminal Court Act 2002 ; or

                     (c)  an authorisation under subsection 32A(1) of the International War Crimes Tribunals Act 1995 .

85  Subsection 6(1)

Repeal the following definitions:

                     (a)  definition of mutual assistance application ;

                     (b)  definition of mutual assistance authorisation .

86  Subsection 6(1)

Insert:

offence has a meaning affected by subsection (5).

87  At the end of section 6

Add:

             (5)  To avoid doubt, a reference in this Act to an offence in relation to:

                     (a)  an international assistance authorisation that is an authorisation under subsection 79A(1) of the International Criminal Court Act 2002 ; or

                     (b)  an international assistance application that is related to such an authorisation;

is a reference to a crime within the jurisdiction of the ICC (within the meaning of that Act).

88  Subsection 14(3A)

Repeal the subsection, substitute:

Warrants sought for international assistance investigations

          (3A)  A law enforcement officer (or a person on his or her behalf) may apply for the issue of a surveillance device warrant if he or she:

                     (a)  is authorised to do so under an international assistance authorisation; and

                     (b)  suspects on reasonable grounds that the use of a surveillance device is necessary, in the course of the investigation, proceeding or investigative proceeding to which the authorisation relates, for the purpose of enabling evidence to be obtained of:

                              (i)  the commission of an offence to which the authorisation relates; or

                             (ii)  the identity or location of the persons suspected of committing the offence.

89  Paragraphs 16(1)(ba) and (2)(a)

Omit “a mutual assistance authorisation”, substitute “an international assistance authorisation”.

90  Paragraph 16(2)(ea)

Repeal the paragraph, substitute:

                    (ea)  in the case of a warrant sought in relation to an international assistance authorisation—the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that this is possible to determine from information obtained from the international entity to which the authorisation relates; and

91  Subparagraph 17(1)(b)(iiia)

Repeal the subparagraph, substitute:

                          (iiia)  if the warrant relates to an international assistance authorisation—each offence to which the authorisation relates; and

92  Paragraph 21(3A)(a)

Omit “a mutual assistance authorisation”, substitute “an international assistance authorisation”.

93  Subparagraph 21(3A)(b)(i)

Repeal the subparagraph, substitute:

                              (i)  the commission of any offence to which the authorisation relates; or

94  Paragraph 21(5)(c)

Repeal the paragraph, substitute:

                     (c)  if the warrant was issued in relation to an international assistance authorisation—of enabling evidence to be obtained of:

                              (i)  the commission of any offence to which the authorisation relates; or

                             (ii)  the identity or location of the persons suspected of committing the offence;

95  Paragraph 45(4)(f)

Repeal the paragraph, substitute:

                      (f)  the communication of information for the purpose of providing it to one of the following entities (or to an appropriate authority of that entity):

                              (i)  a foreign country;

                             (ii)  the International Criminal Court;

                            (iii)  a War Crimes Tribunal;

                            if the information was obtained under, or relates to, a surveillance device warrant issued in relation to an international assistance authorisation requested by that entity; or

                     (g)  the communication of information for the purpose of providing it to a foreign country, or an appropriate authority of a foreign country, if this has been authorised under subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987 ; or

96  Subsection 45(6)

After “Paragraphs (4)(f)”, insert “and (g)”.

97  Paragraphs 50(1)(aa) and (ea)

Omit “mutual assistance applications”, substitute “international assistance applications”.

98  Paragraph 50(1)(ia)

Repeal the paragraph, substitute:

                    (ia)  for each of the following offences:

                              (i)  an offence against a law of a foreign country;

                             (ii)  a crime within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002 );

                            (iii)  a Tribunal offence (within the meaning of the International War Crimes Tribunals Act 1995 );

                            in respect of which a warrant was issued as a result of an international assistance application made by or on behalf of law enforcement officers of the agency during the year—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature; and

99  Subparagraph 53(2)(c)(iiia)

Repeal the subparagraph, substitute:

                          (iiia)  if the warrant was issued in relation to an international assistance authorisation—each offence to which the authorisation relates; and

100  Application of amendments

            The amendments made by this Part apply in relation to a request made to the Attorney-General by the ICC, a Tribunal or a foreign country:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request;

whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

Part 7 Forensic procedures

Crimes Act 1914

101  Part ID (simplified outline)

Omit “(as contemplated by the Mutual Assistance in Criminal Matters Act 1987 )”, substitute “or an international tribunal,”.

102  Subsection 23WA(1)

Insert:

authorising provision , in relation to a request by a foreign country or international tribunal, means whichever of the following provisions that refers to the request:

                     (a)  section 28B of the Mutual Assistance in Criminal Matters Act 1987 ;

                     (b)  section 76A of the International Criminal Court Act 2002 ;

                     (c)  section 32B of the International War Crimes Tribunals Act 1995 .

crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002 .

103  Subsection 23WA(1) (at the end of the definition of foreign law enforcement agency )

Add:

               ; or (c)  any other authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC; or

                     (d)  any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.

104  Subsection 23WA(1) (definition of foreign serious offence )

Repeal the definition, substitute:

foreign serious offence means:

                     (a)  a foreign serious offence (within the meaning of the Mutual Assistance in Criminal Matters Act 1987 ); or

                     (b)  a crime within the jurisdiction of the ICC; or

                     (c)  a War Crimes Tribunal offence.

105  Subsection 23WA(1)

Insert:

ICC has the same meaning as in the International Criminal Court Act 2002 .

international tribunal means:

                     (a)  the ICC; or

                     (b)  a War Crimes Tribunal.

106  Subsection 23WA(1) (paragraph (a) of the definition of investigating constable )

Omit “(as contemplated by the Mutual Assistance in Criminal Matters Act 1987 )”, substitute “, an international tribunal”.

107  Subsection 23WA(1)

Insert:

request , by a foreign country, international tribunal or foreign law enforcement agency, means:

                     (a)  in the case of a foreign country—a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987 , by the country; or

                     (b)  in the case of an international tribunal:

                              (i)  a request referred to in section 76A of the International Criminal Court Act 2002 , if the tribunal is the ICC; or

                             (ii)  a request referred to in section 32B of the International War Crimes Tribunals Act 1995 , if the tribunal is a War Crimes Tribunal; or

                     (c)  in the case of a foreign law enforcement agency—a request, to which Subdivision B of Division 9A applies, by the agency.

108  Subsection 23WA(1) (paragraph (d) of the definition of suspect )

Repeal the paragraph, substitute:

                     (d)  a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has:

                              (i)  started investigating whether the person has committed an indictable offence; or

                             (ii)  started proceedings against the person for an indictable offence.

109  Subsection 23WA(1)

Insert:

War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995 .

War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995 .

110  Subsection 23WA(9)

Repeal the subsection, substitute:

Requests by a foreign country, international tribunal or foreign law enforcement agency

             (9)  The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence.

111  Paragraph 23WJ(1)(ib)

After “a foreign law enforcement agency”, insert “(other than an agency responsible to an international tribunal)”.

112  After paragraph 23WJ(1)(ib)

Insert:

                    (ic)  if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following:

                              (i)  the name of the international tribunal for which the request was made;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the agency;

                            (iii)  that the forensic evidence may be used in proceedings against the suspect in the international tribunal;

                            (iv)  that the retention of the forensic evidence will be governed by the rules of the international tribunal;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the agency;

                            (vi)  the content of those undertakings;

113  Subsection 23WJ(6)

Repeal the subsection, substitute:

Failure to consent to forensic procedure—procedure requested by foreign law enforcement agency

             (6)  The constable must inform the suspect (whether or not the suspect is in custody) that if:

                     (a)  the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and

                     (b)  the suspect does not consent;

the Attorney-General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.

114  Paragraph 23WM(2A)(a)

Repeal the paragraph, substitute:

                     (a)  a foreign country or international tribunal; or

115  Paragraph 23WR(1)(d)

Repeal the paragraph, substitute:

                     (d)  the forensic procedure has been requested by a foreign country or an international tribunal.

116  Paragraph 23WT(1)(ca)

Repeal the paragraph, substitute:

                    (ca)  if the forensic procedure has been requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part; and

117  Paragraph 23WT(2)(a)

Repeal the paragraph, substitute:

                     (a)  if the forensic procedure has been requested by a foreign country or an international tribunal—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and

118  Paragraph 23XWR(2)(da)

After “a foreign law enforcement agency”, insert “(other than an agency responsible to an international tribunal)”.

119  After paragraph 23XWR(2)(da)

Insert:

                   (db)  if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following:

                              (i)  the name of the international tribunal for which the request was made;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the agency;

                            (iii)  that the forensic evidence may be used in proceedings in the international tribunal;

                            (iv)  that the retention of the forensic evidence will be governed by the rules of the international tribunal;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the agency;

                            (vi)  the content of those undertakings;

120  Paragraph 23XWU(1)(d)

Repeal the paragraph, substitute:

                     (d)  in the case of a forensic procedure requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part.

121  Section 23YBA

Repeal the section, substitute:

23YBA   Division does not apply to a proceeding in a foreign country or an international tribunal

                   To avoid doubt, this Division does not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:

                     (a)  a foreign country; or

                     (b)  an international tribunal; or

                     (c)  a foreign law enforcement agency.

122  Section 23YBB

Repeal the section, substitute:

23YBB   Application

                   This Division does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency.

123  Subsection 23YDAC(1) (after paragraph (aa) of the definition of crime scene index )

Insert:

                   (ab)  at any place outside Australia where:

                              (i)  a crime within the jurisdiction of the ICC; or

                             (ii)  a War Crimes Tribunal offence;

                            was, or is reasonably suspected of having been, committed; or

124  Paragraph 23YDAE(2)(da)

Repeal the paragraph, substitute:

                   (da)  the purpose of assisting a foreign country or international tribunal to decide whether to make a request;

125  Paragraph 23YDAE(2)(e)

After “ Mutual Assistance in Criminal Matters Act 1987 ”, insert “, the International Criminal Court Act 2002 , the International War Crimes Tribunals Act 1995 ”.

126  Subsection 23YF(1) (note 1)

Repeal the note, substitute:

Note 1:       If a forensic procedure is carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to that country or tribunal: see section 23YQB.

127  Section 23YKA

Repeal the section, substitute:

23YKA   Application of sections 23YI to 23YK

                   To avoid doubt, sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:

                     (a)  a foreign country; or

                     (b)  an international tribunal; or

                     (c)  a foreign law enforcement agency.

128  Paragraph 23YO(2)(da)

Repeal the paragraph, substitute:

                   (da)  the purposes of assisting a foreign country or international tribunal to decide whether to make a request;

129  Paragraph 23YO(2)(e)

After “ Mutual Assistance in Criminal Matters Act 1987 ”, insert “, the International Criminal Court Act 2002 , the International War Crimes Tribunals Act 1995 ”.

130  Paragraph 23YO(3)(d)

After “ Mutual Assistance in Criminal Matters Act 1987 ”, insert “, the International Criminal Court Act 2002 , the International War Crimes Tribunals Act 1995 ”.

131  Division 9A of Part ID (heading)

Repeal the heading, substitute:

Division 9A Carrying out forensic procedures at the request of a foreign country or international tribunal

132  Subdivision A of Division 9A of Part ID

Repeal the Subdivision, substitute:

Subdivision A Requests by foreign countries or international tribunals

23YQA   Application of Subdivision

                   This Subdivision applies if:

                     (a)  a request is made by a foreign country or an international tribunal (the requesting entity ) for a forensic procedure to be carried out on a person; and

                     (b)  the Attorney-General authorises, under the authorising provision relating to the request, an authorised applicant to apply to a magistrate for the carrying out of the forensic procedure on the person.

23YQB   Providing evidence and material resulting from the forensic procedure

             (1)  Any forensic evidence resulting from the forensic procedure must be provided to the requesting entity in accordance with a direction described in subsection (3).

             (2)  Material (or a copy) relating to the request that was made available to, or viewed by, a person under subsection 23YF(1) (about recordings) may only be provided to the requesting entity in accordance with a direction described in subsection (3).

             (3)  The direction is one given by the Attorney-General under the following provision:

                     (a)  section 28C of the Mutual Assistance in Criminal Matters Act 1987 , if the request was made by a foreign country;

                     (b)  section 76B of the International Criminal Court Act 2002 , if the request was made by the ICC;

                     (c)  section 32C of the International War Crimes Tribunals Act 1995 , if the request was made by a War Crimes Tribunal.

             (4)  This section does not limit the directions that can be given under that provision.

133  At the end of section 23YQC

Add:

Note:          This includes a request by an authority or person responsible to an international tribunal for investigating or prosecuting a crime or an offence within the jurisdiction of the tribunal.

134  Subsection 23YUB(1A)

Repeal the subsection, substitute:

          (1A)  The orders mentioned in subsection (1) do not include an order made in response to a request by a foreign country or international tribunal.

International Criminal Court Act 2002

135  Section 4

Insert:

child has the same meaning as in Part ID of the Crimes Act 1914 .

constable has the same meaning as in the Crimes Act 1914 .

forensic evidence has the same meaning as in Part ID of the Crimes Act 1914 .

forensic material has the same meaning as in Part ID of the Crimes Act 1914 .

forensic procedure has the same meaning as in Part ID of the Crimes Act 1914 .

incapable person has the same meaning as in Part ID of the Crimes Act 1914 .

parent has the same meaning as in the Crimes Act 1914 .

136  After Division 10 of Part 4

Insert:

Division 10A Forensic procedures

76A   Authorising application for carrying out of forensic procedures

             (1)  The Attorney-General may authorise, in writing, a constable to apply under Part ID of the Crimes Act 1914 for an order for the carrying out of a forensic procedure on a person if:

                     (a)  the ICC has requested the procedure to be carried out on the person; and

                     (b)  the Attorney-General is satisfied:

                              (i)  that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

                             (ii)  that the person is, or is believed to be, in Australia; and

                            (iii)  that the ICC has given appropriate undertakings about the retention, use and destruction of forensic material, or of information obtained from analysing that material; and

                            (iv)  that the ICC has given any other undertakings that the Attorney-General considers necessary; and

                             (v)  unless subsection (2) applies—that the person has been given an opportunity to consent to the forensic procedure and has not consented to it; and

                            (vi)  if subsection (2) applies—of the matters in that subsection; and

                     (c)  in the case of the person being a suspect, the constable is an authorised applicant.

             (2)  If the person is a child or an incapable person, the matters are:

                     (a)  that either:

                              (i)  the consent of a parent or guardian of the person cannot reasonably be obtained or has been withdrawn; or

                             (ii)  a parent or guardian of the person is a suspect in relation to a crime or an offence to which the investigation or proceeding relates; and

                     (b)  that, having regard to the best interests of the person, it is appropriate to make the authorisation.

             (3)  In this section:

authorised applicant has the same meaning as in subsection 23WA(1) of the Crimes Act 1914 .

suspect has the same meaning as in subsection 23WA(1) of the Crimes Act 1914 .

76B   Providing forensic evidence to the ICC

             (1)  The Attorney-General may direct a constable about how forensic evidence is to be provided to the ICC if:

                     (a)  the Attorney-General gave an authorisation to the constable under subsection 76A(1); and

                     (b)  the forensic evidence resulted from the authorisation.

             (2)  A direction under subsection (1) is not a legislative instrument.

International War Crimes Tribunals Act 1995

137  Section 4

Insert:

child has the same meaning as in Part ID of the Crimes Act 1914 .

constable has the same meaning as in the Crimes Act 1914 .

forensic evidence has the same meaning as in Part ID of the Crimes Act 1914 .

forensic material has the same meaning as in Part ID of the Crimes Act 1914 .

forensic procedure has the same meaning as in Part ID of the Crimes Act 1914 .

incapable person has the same meaning as in Part ID of the Crimes Act 1914 .

parent has the same meaning as in the Crimes Act 1914 .

138  Before Division 2 of Part 4

Insert:

Division 1B Forensic procedures

32B   Authorising application for carrying out of forensic procedures

             (1)  The Attorney-General may authorise, in writing, a constable to apply under Part ID of the Crimes Act 1914 for an order for the carrying out of a forensic procedure on a person if:

                     (a)  a Tribunal has requested the procedure to be carried out on the person; and

                     (b)  the Attorney-General is satisfied:

                              (i)  that the request relates to a proceeding before, or an investigation conducted by, the Tribunal; and

                             (ii)  that the person is, or is believed to be, in Australia; and

                            (iii)  that the Tribunal has given appropriate undertakings about the retention, use and destruction of forensic material, or of information obtained from analysing that material; and

                            (iv)  that the Tribunal has given any other undertakings that the Attorney-General considers necessary; and

                             (v)  unless subsection (2) applies—that the person has been given an opportunity to consent to the forensic procedure and has not consented to it; and

                            (vi)  if subsection (2) applies—of the matters in that subsection; and

                     (c)  in the case of the person being a suspect, the constable is an authorised applicant.

             (2)  If the person is a child or an incapable person, the matters are:

                     (a)  that either:

                              (i)  the consent of a parent or guardian of the person cannot reasonably be obtained or has been withdrawn; or

                             (ii)  a parent or guardian of the person is a suspect in relation to an offence to which the investigation or proceeding relates; and

                     (b)  that, having regard to the best interests of the person, it is appropriate to make the authorisation.

             (3)  In this section:

authorised applicant has the same meaning as in subsection 23WA(1) of the Crimes Act 1914 .

suspect has the same meaning as in subsection 23WA(1) of the Crimes Act 1914 .

32C   Providing forensic evidence to the Tribunal

             (1)  The Attorney-General may direct a constable about how forensic evidence is to be provided to a Tribunal if:

                     (a)  the Attorney-General gave an authorisation to the constable under subsection 32B(1); and

                     (b)  the forensic evidence resulted from the authorisation.

             (2)  A direction under subsection (1) is not a legislative instrument.

139  Application of amendments

            The amendments made by this Part apply in relation to a request made to the Attorney-General by the ICC, a Tribunal, a foreign country or a foreign law enforcement agency:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request;

whether conduct, a crime or an offence to which the request relates occurred before, on or after that commencement.

Part 8 Proceeds of crime

Division 1—Amendments relating to the ICC

International Criminal Court Act 2002

140  Section 4

Insert:

benefit has the same meaning as in the Proceeds of Crime Act.

141  Section 4 (definition of evidential material )

Repeal the definition, substitute:

evidential material means:

                     (a)  in Subdivision F of Division 14 of Part 4—evidence relating to:

                              (i)  property in relation to which a forfeiture order has been or could be made; or

                             (ii)  property in relation to which a restraining order has been or could be made for the purposes of section 82; or

                            (iii)  property of a person in relation to whom a pecuniary penalty order may be enforced as described in section 159; or

                            (iv)  proceeds of a crime within the jurisdiction of the ICC; or

                             (v)  benefits derived from the commission of a crime within the jurisdiction of the ICC; or

                     (b)  otherwise—a thing relevant to a crime within the jurisdiction of the ICC, including such a thing in electronic form.

142  Section 4 (definition of monitoring order )

Repeal the definition.

143  Section 4

Insert:

person assisting has the same meaning as in the Proceeds of Crime Act.

POCA search warrant means a search warrant issued under Part 3-5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC.

proceeds request has the meaning given by section 81.

144  Section 4

Repeal the following definitions:

                     (a)  definition of production order ;

                     (b)  definition of property tracking document .

145  Section 4

Insert:

responsible enforcement agency head means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant.

146  Section 4

Insert:

senior police officer has the meaning given by subsection 88(3).

147  Paragraph 81(a)

After “a request”, insert “(a proceeds request )”.

148  At the end of Subdivision A of Division 14 of Part 4

Add:

81A   Authorising applications under the Proceeds of Crime Act

                   The Attorney-General may authorise, in writing, an authorised officer of an enforcement agency to make such applications under the Proceeds of Crime Act as are necessary to respond to the proceeds request if the Attorney-General is satisfied that the proceeds request:

                     (a)  relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

                     (b)  is for assistance that can be obtained from one or more production orders, monitoring orders or search warrants under the Proceeds of Crime Act.

Note:          See Subdivision B for proceeds requests that involve the making of a restraining order.

149  Subsection 82(1)

Omit “request from the ICC referred to in section 81”, substitute “proceeds request”.

150  Subsection 82(1)

Omit “to a specified court”.

151  Subsection 82(2)

Repeal the subsection.

152  Paragraph 82(5)(a)

Omit “within the jurisdiction of the ICC”, substitute “that is the subject of the proceeds request”.

153  Paragraph 82(5)(b)

Repeal the paragraph.

154  Paragraph 82(5)(e)

Omit “20, 29, 44 and 45”, substitute “20A, 29, 29A and 44 to 45A”.

155  Section 85

Repeal the section.

156  Subsection 86(1)

Repeal the subsection, substitute:

             (1)  An authorised officer may apply for a production order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.

157  Paragraph 86(3)(a)

Omit “within the jurisdiction of the ICC”, substitute “that is the subject of the proceeds request”.

158  Paragraphs 86(3)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  subparagraphs 202(5)(a)(ii) and (c)(ii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

159  Subsection 88(1)

Omit “The Attorney-General or a senior Departmental officer”, substitute “A senior police officer”.

160  Subsection 88(2)

Omit “Attorney-General or the senior Departmental officer”, substitute “senior police officer”.

161  Subsection 88(3)

Repeal the subsection, substitute:

             (3)  A senior police officer is a person covered by paragraph 213(3)(a), (b) or (c) of the Proceeds of Crime Act.

162  Subsection 90(2)

Before “employee”, insert “officer,”.

163  Section 93

Before “A person”, insert “(1)”.

164  Section 93 (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 2 years or 100 penalty units, or both.

165  Section 93 (note)

Repeal the note.

166  At the end of section 93

Add:

             (2)  Subsection (1) does not apply if:

                     (a)  the person fails to comply with the notice only because the person does not provide information or a document within the period specified in the notice; and

                     (b)  the person took all reasonable steps to provide the information or document within that period; and

                     (c)  the person provides the information or document as soon as practicable after the end of that period.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

Note 2:       Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

167  Section 94

Repeal the section.

168  Subsection 95(1)

Repeal the subsection, substitute:

             (1)  An authorised officer may apply for a monitoring order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.

169  Paragraph 95(3)(a)

Omit “a crime within the jurisdiction of the ICC”, substitute “the crime that is the subject of the proceeds request”.

170  Subdivision F of Division 14 of Part 4 (heading)

Repeal the heading, substitute:

Subdivision F Search warrants relating to proceeds of crime and evidential material

171  Section 97

Repeal the section.

172  Subsection 98(1)

Repeal the subsection, substitute:

             (1)  An authorised officer may apply for a search warrant under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.

173  Subsection 98(2)

Before “search”, insert “POCA”.

174  Subsection 98(3)

Repeal the subsection, substitute:

             (3)  It applies as if:

                     (a)  a reference in that Part to tainted property were a reference to proceeds of the crime that is the subject of the proceeds request; and

                     (b)  a reference in that Part to evidential material were a reference to evidential material as defined in section 4 of this Act for the purposes of this Subdivision; and

                     (c)  the words “or section 100, 101 or 102 of the International Criminal Court Act 2002 ” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act; and

                     (d)  paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act were omitted.

Note:          Sections 99 and 99A of this Act also apply in relation to a POCA search warrant. Sections 100 to 102 of this Act also apply in relation to property or things seized under such a warrant.

175  Section 99

Repeal the section, substitute:

99   Contents of POCA search warrants

                   A POCA search warrant in relation to a crime within the jurisdiction of the ICC must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is proceeds of the crime that are not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the crime that is not of a kind specified in the warrant; or

                            (iii)  is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or

                             (v)  will afford evidence as to the commission of an offence against an Australian law; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 98(3)(d), the POCA search warrant must also state the matters set out in section 227 of the Proceeds of Crime Act.

99A   Seizure of certain property or things found in the course of search

                   A POCA search warrant in relation to a crime within the jurisdiction of the ICC authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is proceeds of the crime that are not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the crime that is not of a kind specified in the warrant; or

                            (iii)  is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or

                             (v)  will afford evidence as to the commission of an offence against an Australian law; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 98(3)(d), the POCA search warrant also authorises the things set out in section 228 of the Proceeds of Crime Act.

176  Subsection 100(1)

Omit “(other than a property-tracking document) that has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act”, substitute “that has been seized under a POCA search warrant”.

177  Subsection 100(2)

Before “warrant”, insert “POCA search”.

178  Subsections 100(3) and (4)

Omit “head of the authorised officer’s enforcement agency”, substitute “responsible enforcement agency head”.

179  Subsection 100(5)

Repeal the subsection, substitute:

             (5)  This section does not apply to property that has been seized under a POCA search warrant because:

                     (a)  it is evidential material; or

                     (b)  it is property of a kind referred to in subparagraph 99A(a)(iv) or (v).

180  Section 101 (heading)

Repeal the heading, substitute:

101   Dealing with certain seized property

181  Subsection 101(1)

Repeal the subsection, substitute:

             (1)  Property must be dealt with in accordance with this section if:

                     (a)  it has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and

                     (b)  it is not:

                              (i)  evidential material; or

                             (ii)  property of a kind referred to in subparagraph 99A(a)(iv) or (v).

182  Paragraph 101(2)(a)

After “property has”, insert “not”.

183  Paragraph 101(2)(b)

Omit “under Subdivision B”, substitute “as described in Subdivision B”.

184  Subsection 101(2)

Omit “head of the enforcement agency whose authorised officer seized the property”, substitute “responsible enforcement agency head”.

185  Subsection 101(3)

Omit “under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency whose authorised officer seized the property”, substitute “as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head”.

186  Subsection 101(5)

Omit “head of the enforcement agency whose authorised officer seized the property, a restraining order has been made under Subdivision B”, substitute “responsible enforcement agency head, a restraining order has been made as described in Subdivision B”.

187  Subsection 101(5)

Omit “head of the enforcement agency” (second and third occurring), substitute “responsible enforcement agency head”.

188  Subsection 101(6)

Repeal the subsection, substitute:

             (6)  If the court is satisfied that the responsible enforcement agency head requires the property to be retained to give effect to the proceeds request, the court may make an order that the responsible enforcement agency head may retain the property for so long as the property is so required.

189  Subsection 101(7)

Omit “head of the enforcement agency whose authorised officer seized it”, substitute “responsible enforcement agency head”.

190  Subsection 101(7)

Omit “head of the enforcement agency” (second occurring), substitute “responsible enforcement agency head”.

191  Section 102

Repeal the section, substitute:

102   Dealing with evidential material and certain property or things seized under POCA search warrants

             (1)  This section applies if:

                     (a)  property or a thing (the seized item ) is seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and

                     (b)  the seized item is:

                              (i)  evidential material; or

                             (ii)  property or a thing of a kind referred to in subparagraph 99A(a)(iv); and

                     (c)  the seized item is seized by a person (the seizing officer ) who is:

                              (i)  an authorised officer; or

                             (ii)  a person assisting in relation to the warrant.

             (2)  The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney-General as to how to deal with the seized item.

             (3)  Without limiting the directions that may be given under subsection (2), the Attorney-General may direct the seizing officer to send the seized item to the ICC.

192  Subsection 153(3)

Repeal the subsection, substitute:

             (3)  Subject to subsection 154(3), if a copy of an authenticated copy of an order is faxed, emailed or sent by other electronic means, it is taken for the purposes of subsection (2) of this section to be the same as the authenticated copy.

193  Subsection 154(3)

Repeal the subsection, substitute:

             (3)  A registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.

194  Subsection 155(2)

Omit “in a court specified in the notice”.

195  Subsection 155(3)

Repeal the subsection.

196  Before subsection 156(1)

Insert:

          (1A)  An application for the registration of an order in accordance with an authorisation under subsection 155(2) must be to a court with proceeds jurisdiction.

197  Subsection 156(1)

Omit “applies to a court for registration of an order in accordance with an authorisation under section 155”, substitute “so applies to a court with proceeds jurisdiction”.

198  Subsections 156(5) and (6)

Repeal the subsections, substitute:

             (5)  A copy sent by fax, email or other electronic means of an authenticated copy of an order is taken for the purposes of subsection (4) to be the same as the authenticated copy.

             (6)  However, a registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.

199  Application and transitional provisions—general

(1)       The amendments made by this Division, to the extent that they do not relate to search warrants, apply in relation to a proceeds request made by the ICC to the Attorney-General:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request.

(2)       The amendments so apply:

                     (a)  whether property or a thing to which the proceeds request relates was acquired before, on or after that commencement; and

                     (b)  whether conduct or a crime to which the proceeds request relates occurred before, on or after that commencement.

(3)       However, subsection 93(2) of the International Criminal Court Act 2002 , as inserted by this Division, applies in relation to a notice given on or after the commencement of this item.

200  Application and transitional provisions—search warrants

(1)       The amendments made by this Division, to the extent that they relate to search warrants, apply in relation to an authorisation given by the Attorney-General under section 81A of the International Criminal Court Act 2002 on or after the commencement of this item:

                     (a)  whether property or a thing to which the authorisation relates was acquired before, on or after that commencement; and

                     (b)  whether conduct or a crime to which the authorisation relates occurred before, on or after that commencement.

(2)       The amendments made by this Division, to the extent that they relate to search warrants, apply in relation to an application made under Part 3-5 of the Proceeds of Crime Act on or after the commencement of this item:

                     (a)  whether property or a thing to which the application relates was acquired before, on or after that commencement; and

                     (b)  whether conduct or a crime to which the application relates occurred before, on or after that commencement; and

                     (c)  whether the authorisation by the Attorney-General relating to the application was given under the International Criminal Court Act 2002 before, on or after that commencement.

(3)       The amendments made by this Division, to the extent that they relate to search warrants, apply in relation to a POCA search warrant issued on or after the commencement of this item:

                     (a)  whether property or a thing to which the warrant relates was acquired before, on or after that commencement; and

                     (b)  whether conduct or a crime to which the warrant relates occurred before, on or after that commencement; and

                     (c)  whether the application for the warrant was made before, on or after that commencement; and

                     (d)  whether the authorisation by the Attorney-General relating to the application for the warrant was given under the International Criminal Court Act 2002 before, on or after that commencement.

(4)       An authorisation by the Attorney-General referred to in paragraph (2)(c) or (3)(d) that:

                     (a)  was given, before the commencement of this item, under subsection 97(1) of the International Criminal Court Act 2002 as in force before that commencement; and

                     (b)  was in force immediately before that commencement;

continues in force (and may be dealt with) after that commencement as if it had been given by the Attorney-General under section 81A of that Act as amended by this Division.

(5)       A direction that:

                     (a)  was made under section 102 of the International Criminal Court Act 2002 before the commencement of this item; and

                     (b)  was in force immediately before that commencement;

continues in force (and may be dealt with) after that commencement as if it had been made under that section as amended by this Division.

Division 2—Amendments relating to Tribunals

International War Crimes Tribunals Act 1995

201  Section 4

Insert:

account has the same meaning as in the Proceeds of Crime Act 2002 .

agent has the same meaning as in the Proceeds of Crime Act 2002 .

authorised officer has the same meaning as in the Proceeds of Crime Act 2002 .

defendant has the meaning given by section 40AA.

enforcement agency has the same meaning as in the Proceeds of Crime Act 2002 .

202  Section 4 (definition of evidential material )

Repeal the definition, substitute:

evidential material means:

                     (a)  in Subdivision F of Division 6 of Part 4—evidence relating to:

                              (i)  property in relation to which a forfeiture order has been or could be made; or

                             (ii)  property in relation to which a restraining order has been or could be made for the purposes of section 40AC; or

                            (iii)  proceeds of a Tribunal offence; or

                     (b)  otherwise—a thing relevant to a Tribunal offence, including such a thing in electronic form.

203  Section 4

Insert:

financial institution has the same meaning as in the Proceeds of Crime Act 2002 .

interest , in relation to property, has the same meaning as in the Proceeds of Crime Act 2002 .

officer , in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act 2002 .

person assisting has the same meaning as in the Proceeds of Crime Act 2002 .

POCA search warrant means a search warrant issued under Part 3-5 of the Proceeds of Crime Act 2002 in relation to a Tribunal offence.

proceeds of a Tribunal offence means proceeds (within the meaning of the Proceeds of Crime Act 2002 ) of such an offence.

proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act 2002 .

proceeds request has the meaning given by section 40AA.

related Tribunal offence : a Tribunal offence is related to another Tribunal offence if the physical elements of the 2 offences are substantially the same acts or omissions.

responsible enforcement agency head means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant.

restraining order means a restraining order under section 17 of the Proceeds of Crime Act 2002 .

senior police officer has the meaning given by subsection 40AH(3).

204  At the end of Part 4

Add:

Division 6 Identification, tracing, and freezing or seizure, of proceeds of Tribunal offences

Subdivision A Preliminary

40AA   Application of Division

                   This Division applies if:

                     (a)  a Tribunal makes a request (a proceeds request ) to the Attorney-General for the identification, tracing, and freezing or seizure, of the proceeds of a Tribunal offence; and

                     (b)  the Attorney-General is satisfied that a person (the defendant ):

                              (i)  has been, or is about to be, charged with the Tribunal offence before the Tribunal; or

                             (ii)  has been convicted by the Tribunal of the Tribunal offence.

40AB   Authorising applications under the Proceeds of Crime Act 2002

                   The Attorney-General may authorise, in writing, an authorised officer of an enforcement agency to make such applications under the Proceeds of Crime Act 2002 as are necessary to respond to the proceeds request if the Attorney-General is satisfied that the proceeds request:

                     (a)  relates to a proceeding before, or an investigation conducted by, the Tribunal; and

                     (b)  is for assistance that can be obtained from one or more production orders, monitoring orders or search warrants under the Proceeds of Crime Act 2002 .

Note:          See Subdivision B for proceeds requests that involve the making of a restraining order.

Subdivision B Restraining orders

40AC   Applying for and making restraining orders

             (1)  If the proceeds request involves the making of a restraining order, the Attorney-General may authorise a proceeds of crime authority to apply for a restraining order against the property concerned.

             (2)  If so authorised, a proceeds of crime authority may apply for such a restraining order against that property in respect of the Tribunal offence.

             (3)  Part 2-1 of the Proceeds of Crime Act 2002 applies to the application, and to any restraining order made as a result.

             (4)  That Part applies as if:

                     (a)  references in that Part to an indictable offence were references to the Tribunal offence that is the subject of the proceeds request; and

                     (b)  references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a Tribunal offence has commenced in the Tribunal; and

                     (c)  references in that Part to it being proposed to charge a person with an indictable offence were references to it being reasonably suspected that criminal proceedings are about to commence against the person in the Tribunal in respect of a Tribunal offence; and

                     (d)  paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20A, 29, 29A and 44 to 45A of that Act were omitted.

40AD   Excluding property from restraining orders

                   If:

                     (a)  a court makes a restraining order under Part 2-1 of the Proceeds of Crime Act 2002 against property in respect of the Tribunal offence; and

                     (b)  a person having an interest in the property applies to the court under Division 3 of Part 2-1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;

the court must grant the application if the court is satisfied that:

                     (c)  in a case where the applicant is not the defendant:

                              (i)  the applicant was not, in any way, involved in the commission of the Tribunal offence; and

                             (ii)  if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Tribunal offence—the property was not proceeds of the Tribunal offence; or

                     (d)  in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

40AE   When restraining order ceases to be in force

             (1)  If, at the end of the period of 1 month after the making of a restraining order in reliance on the proposed charging of a person with a Tribunal offence, the person has not been charged with the Tribunal offence or a related Tribunal offence, the order ceases to be in force at the end of that period.

             (2)  If:

                     (a)  a restraining order is made in reliance on a person’s conviction of a Tribunal offence or the charging of a person with such an offence; or

                     (b)  a restraining order is made in reliance on the proposed charging of a person with a Tribunal offence and the person is, within 1 month after the making of the order, charged with the Tribunal offence or a related Tribunal offence;

the following provisions have effect:

                     (c)  if the charge is withdrawn and the person is not charged with a related Tribunal offence within 28 days after the day the charge is withdrawn, the restraining order ceases to be in force at the end of that period;

                     (d)  if the person is acquitted of the charge and the person is not charged with a related Tribunal offence within 28 days after the day the acquittal occurs, the restraining order ceases to be in force at the end of that period;

                     (e)  if some or all of the property subject to the restraining order is forfeited under Part 6, the restraining order, to the extent to which it relates to that property, ceases to be in force when that property is forfeited;

                      (f)  the restraining order ceases to be in force if and when it is revoked.

Subdivision C Production orders relating to Tribunal offences

40AF   Applying for and making production orders

             (1)  An authorised officer may apply for a production order under the Proceeds of Crime Act 2002 in respect of the Tribunal offence that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 40AB.

             (2)  Part 3-2 of the Proceeds of Crime Act 2002 applies to the application, and to any production order made as a result.

             (3)  That Part applies as if:

                     (a)  references in that Part to an indictable offence or to a serious offence were references to the Tribunal offence that is the subject of the proceeds request; and

                     (b)  subparagraphs 202(5)(a)(ii) and (c)(ii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

40AG   Retaining produced documents

             (1)  An authorised officer who takes possession of a document under a production order made in respect of a Tribunal offence may retain the document pending a written direction from the Attorney-General as to how to deal with the document.

             (2)  Directions from the Attorney-General may include a direction that the document be sent to the Tribunal.

Subdivision D Notices to financial institutions

40AH   Giving notices to financial institutions

             (1)  A senior police officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:

                     (a)  determining whether an account is held by a specified person with the financial institution;

                     (b)  determining whether a particular person is a signatory to an account;

                     (c)  if a person holds an account with the institution, the current balance of the account;

                     (d)  details of transactions on such an account over a specified period of up to 6 months;

                     (e)  details of any related accounts (including names of those who hold those accounts);

                      (f)  a transaction conducted by the financial institution on behalf of a specified person.

             (2)  The senior police officer must not issue the notice unless he or she reasonably believes that giving the notice is required:

                     (a)  to determine whether to take any action under this Division, or under the Proceeds of Crime Act 2002 in connection with the operation of this Division; or

                     (b)  in relation to proceedings under this Division, or under the Proceeds of Crime Act 2002 in connection with the operation of this Division.

             (3)  A senior police officer is a person covered by paragraph 213(3)(a), (b) or (c) of the Proceeds of Crime Act 2002 .

40AI   Contents of notices to financial institutions

                   The notice must:

                     (a)  state that the officer giving the notice believes that the notice is required:

                              (i)  to determine whether to take any action under this Division, or under the Proceeds of Crime Act 2002 in connection with the operation of this Division; or

                             (ii)  in relation to proceedings under this Division, or under the Proceeds of Crime Act 2002 in connection with the operation of this Division;

                            (as the case requires); and

                     (b)  specify the name of the financial institution; and

                     (c)  specify the kind of information or documents required to be provided; and

                     (d)  specify the form and manner in which that information or those documents are to be provided; and

                     (e)  state that the information or documents must be provided within 14 days after the day the notice is received; and

                      (f)  if the notice specifies that information about the notice must not be disclosed—set out the effect of section 40AL (disclosing existence or nature of a notice); and

                     (g)  set out the effect of section 40AM (failing to comply with a notice).

40AJ   Protection from suits etc. for those complying with notices

             (1)  No action, suit or proceeding lies against:

                     (a)  a financial institution; or

                     (b)  an officer, employee or agent of the institution acting in the course of that person’s employment or agency;

in relation to any action taken by the institution or person under a notice under section 40AH or in the mistaken belief that action was required under the notice.

             (2)  A financial institution which, or an officer, employee or agent of a financial institution who, provides information under a notice under section 40AH is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money laundering), not to have been in possession of that information at any time.

40AK   Making false statements in applications

                   A person commits an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way); and

                     (b)  the statement:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the statement is misleading; and

                     (c)  the statement is made in, or in connection with, a notice under section 40AH.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

40AL   Disclosing existence or nature of notice

                   A person commits an offence if:

                     (a)  the person is given a notice under section 40AH; and

                     (b)  the notice states that information about the notice must not be disclosed; and

                     (c)  the person discloses the existence or nature of the notice.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

40AM   Failing to comply with a notice

             (1)  A person commits an offence if:

                     (a)  the person is given a notice under section 40AH; and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 2 years or 100 penalty units, or both.

             (2)  Subsection (1) does not apply if:

                     (a)  the person fails to comply with the notice only because the person does not provide information or a document within the period specified in the notice; and

                     (b)  the person took all reasonable steps to provide the information or document within that period; and

                     (c)  the person provides the information or document as soon as practicable after the end of that period.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

Note 2:       Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

Subdivision E Monitoring orders relating to Tribunal offences

40AN   Applying for and making monitoring orders

             (1)  An authorised officer may apply for a monitoring order under the Proceeds of Crime Act 2002 in respect of the Tribunal offence that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 40AB.

             (2)  Part 3-4 of the Proceeds of Crime Act 2002 applies to the application, and to any monitoring order made as a result.

             (3)  That Part applies as if:

                     (a)  references in that Part to a serious offence were references to the Tribunal offence that is the subject of the proceeds request; and

                     (b)  disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 40AO of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act 2002 .

40AO   Passing on information given under monitoring orders

                   If an enforcement agency is given information under a monitoring order made in relation to the Tribunal offence, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:

                     (a)  the Attorney-General; or

                     (b)  an APS employee who is in the Department and who is specified by the Attorney-General by written notice to the enforcement agency.

Subdivision F Search warrants relating to proceeds of crime and evidential material

40AP   Applying for and issuing search warrants

             (1)  An authorised officer may apply for a search warrant under the Proceeds of Crime Act 2002 in respect of the Tribunal offence that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 40AB.

             (2)  Part 3-5 of the Proceeds of Crime Act 2002 applies to the application, and to any POCA search warrant issued as a result.

             (3)  That Part applies as if:

                     (a)  a reference in that Part to tainted property were a reference to proceeds of the Tribunal offence that is the subject of the proceeds request; and

                     (b)  a reference in that Part to evidential material were a reference to evidential material as defined in section 4 of this Act for the purposes of this Subdivision; and

                     (c)  the words “or section 40AS, 40AT or 40AU of the International War Crimes Tribunals Act 1995 ” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act 2002 ; and

                     (d)  paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act 2002 were omitted.

Note:          Sections 40AQ and 40AR of this Act also apply in relation to a POCA search warrant. Sections 40AS to 40AU of this Act also apply in relation to property or things seized under such a warrant.

40AQ   Contents of POCA search warrants

                   A POCA search warrant in relation to a Tribunal offence must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is proceeds of the Tribunal offence that are not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the Tribunal offence that is not of a kind specified in the warrant; or

                            (iii)  is proceeds of, or evidential material relating to, another Tribunal offence in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a proceeding in the Tribunal in respect of the Tribunal offence; or

                             (v)  will afford evidence as to the commission of an offence against an Australian law; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 40AP(3)(d), the POCA search warrant must also state the matters set out in section 227 of the Proceeds of Crime Act 2002 .

40AR   Seizure of certain property or things found in the course of search

                   A POCA search warrant in relation to a Tribunal offence authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:

                     (a)  the property or thing:

                              (i)  is proceeds of the Tribunal offence that are not of a kind specified in the warrant; or

                             (ii)  is evidential material relating to the Tribunal offence that is not of a kind specified in the warrant; or

                            (iii)  is proceeds of, or evidential material relating to, another Tribunal offence in relation to which a POCA search warrant is in force; or

                            (iv)  is relevant to a proceeding in the Tribunal in respect of the Tribunal offence; or

                             (v)  will afford evidence as to the commission of an offence against an Australian law; and

                     (b)  the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

Note:          Subject to paragraph 40AP(3)(d), the POCA search warrant also authorises the things set out in section 228 of the Proceeds of Crime Act 2002 .

40AS   Return of seized property to third parties

             (1)  A person who claims an interest in property that has been seized under a POCA search warrant in relation to a Tribunal offence may apply to a court for an order that the property be returned to the person.

             (2)  The court must be a court of the State or Territory in which the POCA search warrant was issued that has proceeds jurisdiction.

             (3)  The court must order the responsible enforcement agency head to return the property to the applicant if the court is satisfied that:

                     (a)  the applicant is entitled to possession of the property; and

                     (b)  the property is not proceeds of the relevant Tribunal offence; and

                     (c)  the person who is believed or alleged to have committed the relevant Tribunal offence has no interest in the property.

             (4)  If the court makes such an order, the responsible enforcement agency head must arrange for the property to be returned to the applicant.

             (5)  This section does not apply to property that has been seized under a POCA search warrant because:

                     (a)  it is evidential material; or

                     (b)  it is property of a kind referred to in subparagraph 40AR(a)(iv) or (v).

40AT   Dealing with certain seized property

             (1)  Property must be dealt with in accordance with this section if:

                     (a)  it has been seized under a POCA search warrant in relation to a Tribunal offence; and

                     (b)  it is not:

                              (i)  evidential material; or

                             (ii)  property of a kind referred to in subparagraph 40AR(a)(iv) or (v).

General rule—property to be returned after 30 days

             (2)  If, at the end of the period of 30 days after the day the property was seized:

                     (a)  a forfeiture order in relation to the property has not been registered in a court under Part 6; and

                     (b)  a restraining order has not been made as described in Subdivision B in respect of the property in relation to the Tribunal offence;

the responsible enforcement agency head must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

Effect of restraining orders being registered or obtained

             (3)  If, before the end of that period, a restraining order is made as described in Subdivision B in respect of the property in relation to the Tribunal offence, the responsible enforcement agency head:

                     (a)  if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or

                     (b)  if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act 2002 .

             (4)  If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act 2002 applies to the property as if it were controlled property within the meaning of that Act.

Retaining property despite restraining orders

             (5)  If, at a time when the property is in the possession of the responsible enforcement agency head, a restraining order has been made as described in Subdivision B in respect of the property in relation to the Tribunal offence, the responsible enforcement agency head may apply:

                     (a)  to the court in which the restraining order was registered; or

                     (b)  to the court by which the restraining order was made;

for an order that the responsible enforcement agency head retain possession of the property.

             (6)  If the court is satisfied that the responsible enforcement agency head requires the property to be retained to give effect to the proceeds request, the court may make an order that the responsible enforcement agency head may retain the property for so long as the property is so required.

Effect of forfeiture orders by the Tribunal being registered or obtained

             (7)  If, while the property is in the possession of the responsible enforcement agency head, a forfeiture order in respect of the property is registered in a court under Part 6, the responsible enforcement agency head must deal with the property as required by the forfeiture order.

40AU   Dealing with evidential material and certain property or things seized under POCA search warrants

             (1)  This section applies if:

                     (a)  property or a thing (the seized item ) is seized under a POCA search warrant in relation to a Tribunal offence; and

                     (b)  the seized item is:

                              (i)  evidential material; or

                             (ii)  property or a thing of a kind referred to in subparagraph 40AR(a)(iv); and

                     (c)  the seized item is seized by a person (the seizing officer ) who is:

                              (i)  an authorised officer; or

                             (ii)  a person assisting in relation to the warrant.

             (2)  The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney-General as to how to deal with the seized item.

             (3)  Without limiting the directions that may be given under subsection (2), the Attorney-General may direct the seizing officer to send the seized item to the Tribunal.

205  Subsection 44(1)

Omit “in a specified court”.

206  Subsection 44(2)

Repeal the subsection.

207  Before subsection 45(1)

Insert:

       (1AA)  An application for the registration of an order in accordance with an authorisation under subsection 44(1) must be to a court with proceeds jurisdiction.

208  Subsection 45(1)

Omit “applies to a court for registration of an order in accordance with an authorisation under this Part”, substitute “so applies to a court with proceeds jurisdiction”.

209  Subsection 45(3)

Repeal the subsection, substitute:

             (3)  Subject to subsection 46(2), if a copy of a sealed copy of an order is faxed, emailed or sent by other electronic means, it is taken for the purposes of subsection (2) of this section to be the same as the sealed copy.

210  Subsection 46(2)

Repeal the subsection, substitute:

             (2)  A registration effected by a court registering a copy of a sealed copy ceases to have effect after 45 days unless the sealed copy has been filed by then in that court.

211  Paragraph 46A(1)(a)

Omit “(within the meaning of the Proceeds of Crime Act 2002 )”.

212  Application of amendments

(1)       The amendments made by this Division apply in relation to a proceeds request made by a Tribunal to the Attorney-General:

                     (a)  on or after the commencement of this item; or

                     (b)  before the commencement of this item, if, immediately before that commencement, the Attorney-General had yet to make a decision on the request.

(2)       The amendments so apply:

                     (a)  whether property or a thing to which the proceeds request relates was acquired before, on or after that commencement; and

                     (b)  whether conduct or an offence to which the proceeds request relates occurred before, on or after that commencement.

Part 9 Obligations of carriage service providers etc. to provide assistance, and recovery of costs for providing assistance

Telecommunications Act 1997

213  After paragraph 313(3)(ca)

Insert:

                   (cb)  assisting the investigation and prosecution of:

                              (i)  crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002 ); and

                             (ii)  Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995 );

214  After paragraph 313(4)(ca)

Insert:

                   (cb)  assisting the investigation and prosecution of:

                              (i)  crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002 ); and

                             (ii)  Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995 );

215  Application of amendments

            The amendments made by this Part apply in relation to giving help on or after the commencement of this item, whether conduct, a crime or an offence to which the help relates occurred before, on or after that commencement.