The purpose of section 16.1 is to require the Attorney-General’s consent where a prosecution is to be brought in reliance on Part 2.7 and the conduct constituting the alleged offence occurs wholly in a foreign country and the person charged or to be charged is not of Australian nationality or, if a body corporate, the body corporate is not incorporated under a law of the Commonwealth, or of a State or Territory.
In such cases it may not be appropriate for a prosecution to proceed in Australia even if the usual criteria for a prosecution are met. It is intended that the Attorney-General will have regard to considerations of international law, practice and comity, international relations, prosecution action that is being or might be taken in another country, and other public interest considerations and decide in his or her discretion whether it is appropriate that a prosecution should proceed.
There is also a standard provision enabling a prosecution to be initiated before consent is given (ss16.1(2)). If another Commonwealth law requires consent to the institution of a prosecution, it will be necessary for consents to be obtained under both provisions.
