1Short title
This Act may be cited as the International War Crimes Tribunals Act 1995.
Parliamentary material from APH and the Federal Register of Legislation. Links open the official source in a new tab.
This Act may be cited as the International War Crimes Tribunals Act 1995.
Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
If a provision of this Act does not commence under subsection (2) within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
The objects of this Act are to enable the Commonwealth to co‑operate with a Tribunal in the investigation and prosecution of persons accused of committing Tribunal offences, and, in particular:
to enable the Tribunal to make requests for assistance (see Part 2); and
to provide for persons accused of Tribunal offences to be surrendered to the Tribunal (see Part 3); and
to provide the Tribunal with other forms of assistance in the investigation and prosecution of Tribunal offences (see Part 4); and
to enable the Tribunal to sit in Australia (see Part 5); and
to enable forfeiture orders of the Tribunal to be enforced (see Part 6).
In this Act, unless the contrary intention appears:
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.
Australia, when used in a geographical sense, includes the external Territories.
Australian law means a law of the Commonwealth, a State or a Territory.
authorised officer has the same meaning as in the Proceeds of Crime Act 2002.
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).
child has the same meaning as in Part ID of the Crimes Act 1914.
communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
constable has the same meaning as in the Crimes Act 1914.
defendant has the meaning given by section 40AA.
eligible law enforcement officer has the meaning given by subsection 32A(2).
enforcement agency has the same meaning as in the Proceeds of Crime Act 2002.
evidential material means:
in Subdivision F of Division 6 of Part 4—evidence relating to:
property in relation to which a forfeiture order has been or could be made; or
property in relation to which a restraining order has been or could be made for the purposes of section 40AC; or
proceeds of a Tribunal offence; or
otherwise—a thing relevant to a Tribunal offence, including such a thing in electronic form.
executing officer, in relation to a warrant, means:
the police officer named in the warrant, by the magistrate who issued the warrant, as being responsible for executing the warrant; or
if that police officer does not intend to be present at the execution of the warrant‑another police officer whose name has been written in the warrant by the police officer so named; or
another police officer whose name has been written in the warrant by the police officer last named in the warrant.
federal prisoner means a person who:
is being held in custody pending:
trial for; or
a committal hearing or a summary hearing in relation to; or
sentencing for;
an offence against a law of the Commonwealth or of a Territory; or
is under a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory, or is otherwise subject to detention under a law of the Commonwealth or of a Territory;
but does not include a person who is at large after having escaped from lawful custody.
financial institution has the same meaning as in the Proceeds of Crime Act 2002.
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.
forfeiture order means:
an order made by a Tribunal, under the Statute of the Tribunal or under rules adopted under the Statute of the Tribunal, for forfeiture of property in respect of a Tribunal offence; or
a declaration made by a Tribunal, under the Statute of the Tribunal or under the rules adopted under the Statute of the Tribunal, evidencing forfeiture of property under that Statute or those rules.
Former Yugoslavia Tribunal:
means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by United Nations Security Council Resolution 827 S/RES/827 (1993); and
includes the organs referred to in Article 11 of the Statute of the Tribunal.
In 2013, the text of United Nations Security Council resolutions was accessible through the United Nations website (www.un.org).
frisk search means:
a search of a person conducted by quickly running the hands over the person’s outer garments; and
an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
incapable person has the same meaning as in Part ID of the Crimes Act 1914.
interest, in relation to property, has the same meaning as in the Proceeds of Crime Act 2002.
International Residual Mechanism for Criminal Tribunals:
means the International Residual Mechanism for Criminal Tribunals, established by United Nations Security Council Resolution 1966 S/RES/1966 (2010); and
includes the organs referred to in Article 4 of the Statute of the Tribunal.
In 2013, the text of United Nations Security Council resolutions was accessible through the United Nations website (www.un.org).
The United Nations Security Council decided on 22 December 2010 to establish this Mechanism to carry out residual functions of the Former Yugoslavia Tribunal and the Rwanda Tribunal.
law, in relation to the Commonwealth, a State or a Territory, means a law (whether written or unwritten) of the Commonwealth, that State or that Territory, and includes a law (whether written or unwritten) in force in the Commonwealth, that State or that Territory or in any part of the Commonwealth, that State or that Territory.
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).
magistrate means:
a magistrate of a Territory; or
a magistrate of a State (other than New South Wales or the Northern Territory) in respect of whom an arrangement under section 82 is in force; or
a Judge, or an acting Judge, of the Local Court of New South Wales in respect of whom an arrangement under section 82 is in force; or
a Judge, or an acting Judge, of the Local Court of the Northern Territory in respect of whom an arrangement under section 82 is in force.
The Australian Capital Territory and the Northern Territory are treated as States under this Act—see section 5.
offence, in relation to an Australian law, includes an offence against a law relating to taxation, customs duty or other revenue matters or relating to foreign exchange control.
officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act 2002.
officer assisting, in relation to a warrant, means:
a person who is a police officer and who is assisting in executing the warrant; or
a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant.
ordinary search means a search of a person or of articles in the possession of a person that may include:
requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
an examination of those items.
parent has the same meaning as in the Crimes Act 1914.
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.
police officer means:
a member or special member of the Australian Federal Police; or
a member of the police force or police service of a State.
police station includes:
a police station of a State or Territory; and
a building occupied by the Australian Federal Police.
premises includes a place and a conveyance.
prisoner means a federal prisoner or a State prisoner.
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 of crime authority has the same meaning as in the Proceeds of Crime Act 2002.
Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act).
proceeds request has the meaning given by section 40AA.
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
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.
Rwanda Tribunal:
means the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by United Nations Security Council Resolution 955 S/RES/955 (1994); and
includes the organs referred to in Article 10 of the Statute of the Tribunal.
In 2013, the text of United Nations Security Council resolutions was accessible through the United Nations website (www.un.org).
search warrant means a warrant issued under section 47.
seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
senior police officer has the meaning given by subsection 40AH(3).
State prisoner means a person who:
is being held in custody pending:
trial for; or
a committal hearing or a summary hearing in relation to; or
sentencing for;
an offence against a law of a State; or
is under a sentence of imprisonment for an offence against a law of a State, or is otherwise subject to detention under a law of a State;
but does not include a person who is at large after having escaped from lawful custody.
Statute of the Tribunal means:
for the Former Yugoslavia Tribunal—the Statute of the Tribunal:
adopted by United Nations Security Council Resolution 827 S/RES/827 (1993); and
annexed to the United Nations Secretary‑General’s report S/25704 (1993) given pursuant to paragraph 2 of United Nations Security Council Resolution 808 S/RES/808 (1993); and
for the Rwanda Tribunal—the Statute of the Tribunal annexed to (and adopted by) United Nations Security Council Resolution 955 S/RES/955 (1994); and
for the International Residual Mechanism for Criminal Tribunals—the Statute of the Mechanism in Annex 1 to (and adopted by) United Nations Security Council Resolution 1966 S/RES/1966 (2010).
In 2013, the text of United Nations Security Council resolutions and United Nations Secretary‑General reports was accessible through the United Nations website (www.un.org).
statutory form, in relation to a warrant or notice, means the form of the warrant or notice, as the case may be, set out in the regulations.
stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
strip search means a search of a person or of articles in the possession of a person that may include:
requiring the person to remove all of his or her garments; and
an examination of the person’s body (but not of the person’s body cavities) and of those garments.
surrender warrant means a warrant issued under section 18.
telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
Tribunal means:
the Former Yugoslavia Tribunal; or
the Rwanda Tribunal; or
the International Residual Mechanism for Criminal Tribunals.
Tribunal offence means:
an offence for which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or
an offence for which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal; or
an offence for which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under Article 1 of the Statute of the Tribunal.
warrant premises means premises in relation to which a search warrant is in force.
For the purposes of this Act, the Australian Capital Territory and the Northern Territory are to be regarded as States, and are not to be regarded as Territories.
This Act extends to each external Territory.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
A request by a Tribunal, for assistance that it needs to perform its functions in respect of an investigation or prosecution it is conducting or proposes to conduct, is to be made to the Attorney‑General, or a person authorised by the Attorney‑General.
Without limiting subsection (1), the request may be for assistance of one or more of the following types:
arresting and surrendering to the Tribunal a person in relation to whom the Tribunal has issued an arrest warrant;
executing a request for search and seizure;
obtaining evidence, a document or other article;
providing a document or other record;
locating and identifying a witness or suspect;
arranging for a person to give evidence or assist an investigation;
causing the forfeiture of property or the proceeds of crime;
serving documents;
arranging for the Tribunal to sit in Australia.
If a request by a Tribunal is made to, or received by, a person authorised under subsection (1), the request is taken for the purposes of this Act to have been made to, or received by, the Attorney‑General.
The request must be in writing and must indicate:
who may be, is to be or has been charged with a Tribunal offence as a result of the investigation or prosecution in respect of which the request is made; and
the nature of any such charge; and
the intended time and place of any hearing of any such charge.
The request must also indicate:
the nature of the investigation or prosecution in respect of which the request is made; and
the International Convention or other legal basis on which the Tribunal relies for conducting the investigation or prosecution; and
the nature of the assistance sought; and
the procedure (if any) that the Tribunal wants the Attorney‑General to follow in complying with the request, including the form in which material must be given to the Tribunal; and
the period within which the Tribunal wants the request complied with; and
any confidentiality requirements that the Tribunal wants observed; and
any other matters that might assist in complying with the request.
Failure to comply with subsection (2) does not invalidate a request.
If:
the Attorney‑General receives from a Tribunal a request for surrender of a person; and
the request is in accordance with subsection 8(1); and
the request is accompanied by an arrest warrant in relation to the person that was issued by the Tribunal, or by a copy of that warrant authenticated by the Tribunal;
the Attorney‑General must, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.
A copy of the arrest warrant that was issued by the Tribunal must be attached to the notice.
A magistrate must issue a warrant, in the statutory form, for a person’s arrest if an application is made, in the statutory form, on behalf of the Tribunal, for issue of a warrant pursuant to the notice.
A magistrate must issue a warrant, in the statutory form, for a person’s arrest if:
an application is made, in the statutory form, on behalf of a Tribunal, for issue of a warrant otherwise than pursuant to such a notice; and
the application is accompanied by a copy of an arrest warrant for the person that was issued by the Tribunal; and
the application contains a statement to the effect that, because of circumstances of urgency, it is necessary to issue a warrant before receiving a notice from the Attorney‑General under section 9.
The magistrate must without delay send to the Attorney‑General a report stating whether the magistrate has issued the warrant. Note: Division 4 of Part 7 deals with matters relating to arrest.
The Attorney‑General must, by written notice in the statutory form, direct a magistrate to cancel a warrant if the person has not been arrested under the warrant and:
the Attorney‑General is satisfied that a request from a Tribunal that would oblige the Attorney‑General to issue a notice under section 9 in relation to the person will not be received; or
the Attorney‑General considers for any other reason that the warrant should be cancelled.
Showing the first 12 of 116 provisions. See all provisions