(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):
(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 .
3ZQB Circumstances
where investigating official may seek authority to carry out a prescribed
procedure
(1) If:
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.
3ZQC Obtaining of consents for the carrying out of a prescribed procedure
(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 independent 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 and reasons 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
- (ea)
- that the persons giving the requisite consent may withdraw that consent
at any time; 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; and
- (h)
- that the person on whom the procedure is to be carried out may have, so
far as is reasonably practicable, a person of his or her choice present while
the procedure is carried out.
(3) The requisite consents may be given:
- (a)
- in person; or
- (b)
- by telephone, telex, fax or other electronic means.
(4) Nothing in this section affects the rights of a person under Part 1C,
in particular a person's rights under:
- (a)
- section 23G (Right to
communicate with friend, relative and legal practitioner); or
- (b)
- section 23P (Right of foreign national to communicate with consular
office).
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.
3ZQE Recording of
giving of information about carrying out a prescribed procedure and relevant
responses
(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.
3ZQF Circumstances where judge or magistrate may order carrying out of a
prescribed procedure on own initiative
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.
3ZQG Orders made by judges or magistrates concerning carrying out of a
prescribed procedure
(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.
Subdivision
E—Matters relating to the carrying out of prescribed procedures
A prescribed procedure must be carried out in a manner consistent with either
or both of the following:
- (a)
- appropriate medical standards;
- (b)
- appropriate 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.
Subdivision F—Disclosure and destruction of age determination information
(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;
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Commonwealth Numbered Acts