Document ID: chunk:federal_register_of_legislation:C2021C00313:section:39
Version: federal_register_of_legislation:C2021C00313
Segment Type: section
Provision Reference: s 39
Character Range: 60566–62388

39  Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
 (1) This section applies if:
 (a) section 37 applies; and
 (b) the foreign country is not a party to the Statute.
 (2) Priority must be given to the request for surrender if:
 (a) Australia is not under an international obligation to extradite the person to the foreign country; and
 (b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
 (3) The request for extradition by the foreign country may continue to be dealt with if:
 (a) Australia is not under an international obligation to extradite the person to the foreign country; and
 (b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
 (4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
 (5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.
 (6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney‑General must determine whether to surrender the person or to extradite the person to the foreign country.
 (7) In making the determination under subsection (6), the Attorney‑General must consider all relevant matters, including, but not limited to:
 (a) the respective dates of the requests; and
 (b) the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
 (c) the possibility of subsequent surrender between the ICC and the foreign country.