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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Crimes
Amendment (Age Determination) Bill 2001
No.
, 2001
(Justice and
Customs)
A Bill for an Act to amend the
Crimes Act 1914 to facilitate the determination of the age of persons
suspected of committing, or charged with, Commonwealth offences, and for related
purposes
ISBN: 0642 466408
Contents
Crimes Act
1914 3
A Bill for an Act to amend the Crimes Act 1914 to
facilitate the determination of the age of persons suspected of committing, or
charged with, Commonwealth offences, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Crimes Amendment (Age
Determination) Act 2001.
This Act commences on the 28th day after the day on which it receives the
Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 After Division 4 of
Part 1AA
Insert:
(1) In this Division:
age determination information means a photograph (including
an X-ray photograph) or any other record or information relating to a person
that is obtained by carrying out a prescribed procedure.
appropriately qualified, in relation to the carrying out of a
prescribed procedure, means:
(a) having suitable professional qualifications or experience to carry out
the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed
procedure.
Commonwealth offence means an offence against a law of the
Commonwealth, other than an offence that is a service offence for the purposes
of the Defence Force Discipline Act 1982.
investigating official 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; or
(c) a person who holds an office the functions of which include the
investigation of Commonwealth offences and who is empowered by a law of the
Commonwealth because of the holding of that office to make arrests in respect of
such offences.
prescribed procedure means a procedure specified by
regulations made for the purposes of subsection (2) to be a prescribed
procedure for determining a person’s age.
(2) The regulations may specify a particular procedure, which may include
the taking of an X-ray of a part of a person’s body, to be a prescribed
procedure for determining a person’s age.
(3) A procedure prescribed for the purposes of
subsection (2):
(a) may involve the operation of particular equipment that is specified
for the purpose; and
(b) may require that equipment to be operated by an appropriately
qualified person.
(4) Before the Governor-General makes a regulation for the purposes of
subsection (2), the Minister must consult with the Minister responsible for
the administration of the Therapeutic Goods Act 1989.
(1) If:
(a) an investigating official suspects, on reasonable grounds, that a
person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at
the time of the alleged commission of the offence, under 18 because that
question is relevant to the rules governing the person’s detention, the
investigation of the offence or the institution of criminal
proceedings;
the investigating official may, whether or not the person is in custody at
the time, arrange for the carrying out of a prescribed procedure in respect of
the person only if:
(c) the investigating official obtains, in accordance with
section 3ZQC, the requisite consents to the carrying out of the procedure
in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the
carrying out of the procedure in respect of the person.
(2) An application to a magistrate by an investigating official for the
purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(3) In deciding whether to make such an order on application by an
investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has
committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at
the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the
application of the rules governing the person’s detention, the
investigation of the offence or the institution of criminal
proceedings.
(1) For the purposes of paragraph 3ZQB(1)(c), an investigating official is
taken to have obtained the requisite consents to the carrying out of a
prescribed procedure in respect of a person if the following persons agree in
writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the
procedure;
(b) either:
(i) a parent or guardian of the person; or
(ii) if a parent or guardian is not available or is not acceptable to the
person—an adult person (other than an investigating official involved in
the investigation of the person) who is capable of representing the interests of
the person and who, as far as is practicable in the circumstances, is acceptable
to the person.
(2) Before seeking the consents referred to in subsection (1), an
investigating official must first inform each of the persons from whom such a
consent is being sought, in a language in which the person is able to
communicate with reasonable fluency:
(a) the purpose for which the prescribed procedure is to be carried out;
and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular
equipment—the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure
could affect the manner of dealing with the person on whom the procedure is to
be carried out; and
(e) the known risks (if any) that would be posed to the health of the
person on whom the procedure is to be carried out; and
(f) that the seeking of the requisite consent and any giving of such
consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a
copy of that record.
If a person who has given consent to the carrying out of a prescribed
procedure expressly withdraws consent to the carrying out of that procedure (or
if the withdrawal of such consent can reasonably be inferred from the
person’s conduct) before or during the carrying out of the procedure, the
carrying out of the procedure is not to proceed otherwise than by order of a
magistrate on the application of an investigating official.
(1) An investigating official must, if practicable, ensure that:
(a) the giving of information about a prescribed procedure and the
responses (if any) of the persons to whom the information is given are recorded
by audio tape, video tape or other electronic means; and
(b) a copy of the record is made available to the person on whom it is
sought to carry out the procedure.
(2) If recording the giving of information and the responses (if any) of
the persons to whom the information is given in the manner referred to in
subsection (1) is not practicable, the investigating official must ensure
that:
(a) a written record of the giving of the information and of the responses
(if any) is made; and
(b) a copy of the record is made available to the person on whom it is
sought to carry out the procedure.
If:
(a) a person is being prosecuted for a Commonwealth offence; and
(b) the judge or magistrate presiding over the proceedings related to that
offence is satisfied that it is necessary to ascertain whether or not the person
is, or was, at the time of the alleged commission of that offence, under
18;
the judge or magistrate presiding may make an order requiring the carrying
out of a prescribed procedure in respect of the person.
(1) If a judge or a magistrate orders the carrying out of a prescribed
procedure (whether as a result of a request by an investigating official or
not), the judge or magistrate must:
(a) ensure that a written record of the order, and of the reasons for the
making of the order, is kept; and
(b) ensure that the person on whom the procedure is to be carried out is
told by an investigating official in a language in which the person is able to
communicate with reasonable fluency:
(i) that an order for the carrying out of the procedure has been made and
of the reasons for the making of the order; and
(ii) of the arrangements for the carrying out of the procedure;
and
(iii) of the fact that reasonable force may be used to secure the
compliance of the person to whom the order relates.
(2) The judge or magistrate may give directions as to the time, place and
manner in which the procedure is to be carried out.
A prescribed procedure must be carried out in a manner consistent with
appropriate medical or other relevant professional standards.
Except where the carrying out of a prescribed procedure to determine a
person’s age is undertaken with the consent of that person and of an
additional adult person in accordance with section 3ZQC, the person
carrying out the procedure, and any person assisting that person, is entitled to
use such force as is reasonable and necessary in the circumstances.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the disclosure of age determination
information other than as provided by this section; and
(b) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(2) A person may only disclose age determination information:
(a) for a purpose related to establishing and complying with the rules
governing:
(i) the detention of the person to whom the age determination information
relates; or
(ii) the investigation of a Commonwealth offence by that person;
or
(iii) the institution of criminal proceedings against that person for a
Commonwealth offence; or
(b) for a purpose related to the conduct of:
(i) the investigation of the person to whom the age determination
information relates for a Commonwealth offence; or
(ii) proceedings for a Commonwealth offence against that person;
or
(c) for the purpose of an investigation by the Privacy Commissioner of the
Commonwealth or the Commonwealth Ombudsman; or
(d) if the person to whom the age determination information relates
consents in writing to the disclosure.
Note: A defendant bears an evidential burden in relation to
the matters referred to in subsection (2)—see subsection 13.3(3) of
the Criminal Code.
(1) If, in relation to a Commonwealth offence:
(a) age determination information relating to a person has been obtained
by carrying out a prescribed procedure; and
(b) 12 months have passed since the carrying out of the procedure;
and
(c) proceedings in respect of the offence have not been instituted against
the person from whom the information was taken or have discontinued;
the information must be destroyed as soon as practicable.
(2) If, in relation to a Commonwealth offence, age determination
information relating to a person has been obtained by carrying out a prescribed
procedure and:
(a) the person is found to have committed the offence but no conviction is
recorded; or
(b) the person is acquitted of the offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is
confirmed or the appeal is withdrawn;
the information must be destroyed as soon as practicable unless an
investigation into, or a proceeding against, the person for another Commonwealth
offence is pending.
(3) A magistrate may, on application by an investigating official, extend
the period of 12 months referred to in subsection (1), or that period as
previously extended under this subsection in relation to the information, if the
magistrate is satisfied that there are special reasons for doing so.
2 After paragraph 23C(7)(f)
Insert:
(fa) any time during which the questioning of the person is suspended or
delayed in order to allow the making of an application under section 3ZQB
or the carrying out of a prescribed procedure within the meaning of
Division 4A of Part 1AA;