INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18, 1995
Making Information
- Assented to 29 March 1995
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - TABLE OF
PROVISIONS
TABLE OF PROVISIONS
PART 1-PRELIMINARY
Section
1. Short title
2. Commencement
3. The objects of this Act
4. Definitions
5. Some Territories to be regarded as States
6. External Territories
PART 2-REQUESTS BY A TRIBUNAL FOR ASSISTANCE
7. Tribunal may request assistance
8. Form of requests
PART 3-SURRENDER OF PERSONS TO A TRIBUNAL
Division 1-Arrest of persons
9. Notice by Attorney-General
10. Issue of warrants
11. Cancellation of warrants
12. Remand
13. Release from remand on the Attorney-General's direction
14. Release from remand after certain periods
15. Application for search warrants
Division 2-Surrender of persons
16. Surrender determination by Attorney-General
17. Release from remand on refusal to surrender the person
18. Surrender warrants
19. Persons imprisoned under Australian law
20. Detention following surrender warrants
21. Content of surrender warrants
22. Execution of surrender warrants
23. Release from remand
24. Effect of surrender to Tribunal on person's terms of
imprisonment
25. Expiry of Australian sentences while under Tribunal detention
PART 4-OTHER FORMS OF ASSISTANCE TO A TRIBUNAL
Division 1-Taking evidence etc.
26. Attorney-General may authorise taking of evidence etc.
27. Taking of evidence
28. Producing documents or other articles
29. Legal representation
30. Form of certificates
31. Compellability of persons to attend etc.
32. Tribunal immunity certificates
Division 2-Search and seizure
33. Attorney-General may authorise applications for search
warrants
34. Applications for search warrants
Division 3-Giving evidence at hearings, or assisting in
investigations, in foreign countries
35. Persons giving evidence or assisting (other than prisoners)
36. Prisoners giving evidence or assisting
37. Undertakings relating to prisoners
38. Effect of removal to foreign country on prisoners' terms of
imprisonment
Division 4-Custody of persons in transit
39. Transit
Division 5-Service of process
40. Service of process
PART 5-SITTINGS OF A TRIBUNAL IN AUSTRALIA
41. Tribunal sittings in Australia
42. Tribunal's powers while sitting in Australia
43. Contravention of Tribunal orders etc.
PART 6-FORFEITURE OF PROCEEDS OF TRIBUNAL OFFENCES
44. Requests for enforcement of forfeiture orders
45. Registration of order
46. Effect of order
PART 7-SEARCH, SEIZURE AND POWERS OF ARREST
Division 1-Search warrants
47. When search warrants can be issued
48. Content of warrants
49. The things authorised by a search warrant in relation to
premises
50. The things authorised by a search warrant in relation to a
person
51. Restrictions on personal searches
52. Warrants may be issued by telephone etc.
53. Formalities relating to warrants issued by telephone etc.
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Division 2-Provisions relating to execution of search warrants
54. Availability of assistance and use of force in executing a
warrant
55. Copy of warrant to be shown to occupier etc.
56. Specific powers available to officers executing warrants
57. Use of equipment to examine or process things
58. Use of electronic equipment at premises
59. Compensation for damage to electronic equipment
60. Copies of seized things to be provided
61. Occupier entitled to be present during search
62. Receipts for things seized under warrant
Division 3-Stopping and searching conveyances
63. Searches without warrant in emergency situations
64. How a police officer exercises a power under section 63
Division 4-Arrest and related matters
65. Power to enter premises to arrest person
66. Use of force in making arrest
67. Persons to be informed of grounds of arrest
68. Power to conduct a frisk search of an arrested person
69. Power to conduct an ordinary search of an arrested person
70. Power to conduct search of arrested person's premises
71. Power to conduct an ordinary search or strip search
72. Rules for conduct of strip search
Division 5-General
73. Conduct of ordinary searches and frisk searches
74. Announcement before entry
75. Offence for making false statements in warrants
76. Offences relating to telephone warrants
77. Retention of things seized
PART 8-MISCELLANEOUS
78. Arrest of persons escaping from custody
79. Arrest of person released on bail
80. Aiding persons to escape, etc.
81. Legal assistance
82. Arrangements with States
83. Delegation
84. Act not to limit other provision of assistance
85. Regulations
SCHEDULE 1
RESOLUTION 827 (1993)
SCHEDULE 2
STATUTE OF THE FORMER YUGOSLAVIA TRIBUNAL
SCHEDULE 3
RESOLUTION 955 (1994)
SCHEDULE 4
STATUTE OF THE RWANDA TRIBUNAL
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - LONG TITLE
An Act to provide for the Commonwealth to help the
International War Crimes Tribunals perform their functions, and
for related purposes
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - PART 1
PART 1-PRELIMINARY
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 1
Short title
1. This Act may be cited as the International War Crimes Tribunals Act 1995.
(Minister's second reading speech made in-
Senate on 10 February 1994
House of Representatives on 21 September 1994)
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 2
Commencement
2.(1) Sections 1 and 2 commence on the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act commence
on a day or days to be fixed by Proclamation.
(3) 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.
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 3
The objects of this Act
3. 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:
(a) to enable the Tribunal to make requests for assistance (see Part 2);
and
(b) to provide for persons accused of Tribunal offences to be surrendered to
the Tribunal (see Part 3); and
(c) to provide the Tribunal with other forms of assistance in the
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investigation and prosecution of Tribunal offences (see Part 4); and
(d) to enable the Tribunal to sit in Australia (see Part 5); and
(e) to enable forfeiture orders of the Tribunal to be enforced (see Part 6).
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 4
Definitions
4. In this Act, unless the contrary intention appears:
"Australia", when used in a geographical sense, includes the external
Territories;
"Australian law" means a law of the Commonwealth, a State or a Territory;
"evidential material" means a thing relevant to a Tribunal offence,
including such a thing in electronic form;
"executing officer", in relation to a warrant, means:
(a) the police officer named in the warrant, by the magistrate who issued
the warrant, as being responsible for executing the warrant; or
(b) 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
(c) another police officer whose name has been written in the warrant by the
police officer last named in the warrant;
"fax", in relation to a document, means a copy of a document obtained or
sent by facsimile transmission;
"federal prisoner" means a person who:
(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of the Commonwealth or of a Territory; or
(b) 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;
"forfeiture order" means:
(a) 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
(b) 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":
(a) 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
Resolution 827 (1993) of the Security Council of the United Nations, a copy of
the English text of which is set out in Schedule 1; and
(b) includes any of the organs referred to in Article 11 of the Statute of
the Tribunal;
"frisk search" means:
(a) a search of a person conducted by quickly running the hands over the
person's outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person;
"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;
"magistrate" means:
(a) a magistrate of a Territory; or
(b) a magistrate of a State in respect of whom an arrangement under section
82 is in force;
Note: The Australian Capital Territory, the Northern Territory and Norfolk
Island 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 assisting", in relation to a warrant, means:
(a) a person who is a police officer and who is assisting in executing the
warrant; or
(b) 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:
(a) requiring the person to remove his or her overcoat, coat or jacket and
any gloves, shoes and hat; and
(b) an examination of those items;
"police officer" means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory;
"police station" includes:
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(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police;
"possession", in relation to a thing, includes having the thing under
control in any place whatsoever, whether for the use or benefit of the person
of whom the term is used or of another person, and although another person has
the actual possession or custody of the thing in question;
"premises" includes a place and a conveyance;
"prisoner" means a federal prisoner or a State prisoner;
"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;
"Rwanda Tribunal":
(a) 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 Resolution 955 (1994) of the Security Council of the United
Nations, a copy of the English text of which is set out in Schedule 3; and
(b) includes any of the organs referred to in Article 10 of the Statute of
the Tribunal;
"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;
"State prisoner" means a person who:
(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of a State; or
(b) 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:
(a) in the case of the Former Yugoslavia Tribunal-the Statute of the
Tribunal (a copy of the English text of which is set out in Schedule 2)
adopted by Resolution 827 (1993) of the Security Council of the United Nations
(a copy of the English text of which is set out in Schedule 1); and
(b) in the case of the Rwanda Tribunal-the Statute of the Tribunal (a copy
of the English text of which is set out in Schedule 4) adopted by Resolution
955 (1994) of the Security Council of the United Nations (a copy of the
English text of which is set out in Schedule 3);
"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;
"strip search" means a search of a person or of articles in the possession
of a person that may include:
(a) requiring the person to remove all of his or her garments; and
(b) 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;
"Tribunal" means:
(a) the Former Yugoslavia Tribunal; or
(b) the Rwanda Tribunal;
"Tribunal offence" means:
(a) 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
(b) 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;
"warrant premises" means premises in relation to which a search warrant is
in force.
Some Territories to be regarded as States 5. For the purposes of this Act
(other than section 6), the Australian Capital Territory, the Northern
Territory and Norfolk Island are to be regarded as States, and are not to be
regarded as Territories.
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 6
External Territories
6. This Act extends to each external Territory.
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - PART 2
PART 2-REQUESTS BY A TRIBUNAL FOR ASSISTANCE
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 7
Tribunal may request assistance
7.(1) 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.
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(2) Without limiting subsection (1), the request may be for assistance of
one or more of the following types:
(a) arresting and surrendering to the Tribunal a person in relation to whom
the Tribunal has issued an arrest warrant;
(b) executing a request for search and seizure;
(c) obtaining evidence, a document or other article;
(d) providing a document or other record;
(e) locating and identifying a witness or suspect;
(f) arranging for a person to give evidence or assist an investigation;
(g) causing the forfeiture of property or the proceeds of crime;
(h) serving documents;
(i) arranging for the Tribunal to sit in Australia.
(3) 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.
INTERNATIONAL WAR CRIMES TRIBUNALS ACT 1995 No. 18 of 1995 - SECT 8
Form of requests
8.(1) The request must be in writing and must indicate:
(a) 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
(b) the nature of any such charge; and
(c) the intended time and place of any hearing of any such charge.
(2) The request must also indicate:
(a) the nature of the investigation or prosecution in respect of which the
request is made; and
(b) the International Convention or other legal basis on which the Tribunal
relies for conducting the investigation or prosecution; and
(c) the nature of the assistance sought; and
(d) 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