Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)General outline and financial impact
General outline
The Crimes Amendment (Age Determination ) Bill 2001 contains important measures to permit prescribed procedures to determine a persons age, where that person is suspected of having committed a Commonwealth offence, or charged with a Commonwealth offence, and where it is not practicable to determine a persons age by other means.
These measures are desirable because in recent times there has been a large volume of criminal activity relating to illegal fishing and people smuggling. Many of the suspected offenders are relatively young; and it can be difficult to ascertain whether a given suspect is a juvenile or an adult. The adult/juvenile distinction is important for determining whether special investigatory safeguards directed at juveniles are applicable; whether the suspect should be prosecuted in an adult or juvenile court; whether the suspect should be detained in an adult or juvenile detention facility; and whether a conviction should lead to adult or juvenile punishments.
Existing provisions are inadequate for this purpose.
Previously, some reliance had been placed on section 258 of the Migration Act 1958, which provides that where a person is in immigration detention an authorised officer can do anything reasonably necessary to photograph or measure the person for identification procedures. X-rays had been employed as an identification procedure in many cases, and the results could also be employed as evidence of the suspects age. However, in R v Hatim, Kadir and Others
[2000] NTSC 53, Justice Thomas of the Northern Territory Supreme Court held that section 258 did not authorise the use of an X-ray. In any case, there are cases where the necessary prerequisites for employing section 258 dont apply, for example, where a suspect is not in immigration detention or an X-ray is not necessary to determine their identity.
Part 1D of the Crimes Act 1914 makes provision for obtaining evidence to confirm or disprove that a suspect has committed a relevant offence. Evidence of age is, however, only relevant for the purpose of determining whether a defendant should be dealt with according to legislative provisions applicable to persons under the age of 18. No express provision is made in the Crimes Act 1914 for the use of equipment to determine the age of a person.
The measures for determining a persons age have two limbs: one to deal with determination of a suspects age at the outset of an investigation and the other to deal with a situation where doubt as to a defendants age arises at trial.
The measures are designed to be consistent with existing provisions in the Crimes Act 1914 governing forensic and identification procedures, in Parts 1D and 1AA, respectively. For example, the measures are predicated on informed consent and contain similar safeguards to the forensic procedure provisions. The amendments will be inserted into Part 1AA of the Crimes Act.
Financial Impact
The amendments will have no financial impact.
Notes on clauses
1. This clause provides for the short title of the Act.
2. This clause provides that the age determination provisions will commence 28 days after Royal Assent. A 28 day period is required to allow the Minister for Justice and Customs to consult with the Minister for Health and Aged Care regarding the applicability of prescribing certain equipment for use in a prescribed procedure and any appropriate safeguards governing the use of such equipment.
3. This clause provides that the Crimes Act 1914, which is specified in Schedule 1 to the Bill, is amended as set out in each case.
SCHEDULE 1: Amendment to the Crimes Act 1914
Item 1 - Amendment to Part 1AA of the Crimes Act 1914
4. This item contains the substantive provisions for determining a persons age. A new Division 4A is proposed to be inserted into Part 1AA of the Crimes Act 1914.
5. Proposed subsection 3ZQA(1) contains some important definitions for the terms: age determination information; appropriately qualified; Commonwealth offence; investigating official; prescribed procedure. Those of particular note are:
- (a)
- 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. The definition is drafted with an eye to the future to allow for advances in age determining technology. At present, the best age determining technique involves taking a wrist x-ray to measure bone density to ascertain whether or not two particular bones have fused together in the suspects wrist. From this x-ray, a diagnostic radiologist can usually determine whether the suspect is a juvenile or an adult.
- (b)
- investigating official is defined in the same terms as those in existing section 23B of Part 1C of the Crimes Act 1914. It is appropriate that officials Parliament has conferred arrest powers upon should have recourse to the powers to determine a persons age.
- (c)
- prescribed procedure is a neutral term to allow for future advances in age determining technology. It is necessary to fully define the term in the regulations because of the flexibility required to keep pace with anticipated technological developments. Under proposed subsection 3ZQA(2) each individual prescribed procedure must be specified in the regulations after appropriate consultation with the Minister for Health and Aged Care. This will ensure that only relevant equipment is prescribed and that all appropriate safeguards apply to protect suspects from any health risks associated with the use of certain equipment in a prescribed procedure.
6. Proposed subsection 3ZQA(3) makes clear that a procedure prescribed in the regulations should specify the purpose for which particular equipment is prescribed and that only appropriately qualified persons, as nominated in the regulations, should operate that equipment.
7. Proposed subsection 3ZQA(4) imposes a statutory obligation on the Minister for Justice and Customs to consult with the Minister for Health and Aged Care before prescribing a procedure in the regulations. This ensures that all health considerations are factored into the Ministers decision to prescribe a procedure in the regulations. The Minister for Health and Aged Care has the critical expertise in this area, being responsible for the Therapeutic Goods Administration. The Therapeutic Goods Administration regulates medical devices, which includes x-ray equipment, under the Therapeutic Goods Act 1989.
Subdivision B - Determination of age during investigation
Proposed 3ZQB - Circumstances where investigating official may seek authority to carry out a prescribed procedure
8. Proposed section 3ZQB outlines the circumstances in which an investigating official may seek authority to carry out a prescribed procedure to determine a persons age. The investigating official must have reasonable grounds to suspect that the person may have committed a Commonwealth offence. This threshold requirement will allow a persons age to be determined early in the investigative process. Of course, this is important to ensure that the suspect is treated appropriately as either an adult or a juvenile throughout the investigation. Paragraph (1)(b) lists the circumstances for which it is important to know a persons age: for the rules governing the persons detention; the investigation of the offence; the institution of criminal proceedings.
9. An investigating official may only arrange for an appropriately qualified person to carry out a prescribed procedure if: (1) the official obtained the requisite informed consents under proposed section 3ZQC; or (2) a magistrate orders the carrying out of the prescribed procedure. Providing for an order to be made by a magistrate rather than an investigating officer is an important safeguard when dealing with juveniles. Before issuing an order the magistrate must be satisfied of the matters described in proposed subsection 3ZQB(3).
10. There is a separate provision to apply during proceedings in case a dispute or doubt as to whether a person is a juvenile or adult only arises at this late stage (see proposed section 3ZQF). It would be cumbersome and unnecessary to require a separate application to a magistrate at that stage.
Proposed section 3ZQC - Obtaining of consents for the carrying out of a prescribed procedure
11. Proposed subsection 3ZQC(1) makes it clear that two written consents are required before an investigating official can arrange for the carrying out of a prescribed procedure: (1) informed consent from the person who is a suspect; and (2) informed consent from either a parent of guardian of that person, or if a parent or guardian is not available or is not acceptable to the suspect, another adult person capable of representing the suspects interests.
12. Providing for written consent by both the suspect and whether a parent, guardian or other adult representing the suspects interests is consistent with section 3ZJ of the Crimes Act 1914, which permits identification material to be taken from a juvenile if the same consent procedure is followed. There will be instances where a parent or guardian will not be available. (For example, a suspect may be a crew member on a foreign boatinvolved in bringing unauthorised arrivals to Australia and apprehended in a remote area where no parent or guardian is available.) In these circumstances an appropriate adult is required to give consent to a prescribed procedure. An appropriate adult could be a senior Government official who is not connected with the investigation.
13. Consent from both persons must be fully informed consent. Proposed subsection 3ZQC(2) outlines the matters an investigating official must communicate to each person, in a language in which the person is fluent, before consent is informed. Ensuring these matters are fully explained to both persons is consistent with the informed consent rules for forensic procedures on suspects in existing sections 23WD-WL of the Crimes Act 1914. It is also an appropriate mechanism to protect individual liberties and gives substance to the provision of consent.
Proposed section 3ZQD - Withdrawal of consent
14. Proposed section 3ZQD stipulates that if a person withdraws consent to the carrying out of a prescribed procedure (either expressly of if the withdrawal can reasonably be inferred from the persons conduct) the carrying out of the procedure must be halted. The provision for withdrawal of consent is consistent with existing section 23WK of the Crimes Act 1914, which allows a person to withdraw consent from forensic procedures. A prescribed procedure can only be undertaken once consent has been withdrawn if a magisterial order authorises the prescribed procedure. This would apply even to the situation where the appropriate adult withdrew consent, thereby requiring the halting of the wrist x-ray procedure.
Proposed section 3ZQE - Recording of giving of information
15. Proposed section 3ZQE requires the giving of information by the investigating official under subsection 3ZQC(2) and the giving of consent under subsection 3ZQC(1) to be recorded where practicable. If recording is not practicable then a written record of the informed consent process must be made. Copies of the recording or the written record must be made available to the suspect.
16. This provision incorporates procedural fairness considerations. It also creates a mechanism for ensuring prescribed procedures are utilised in an accountable manner.
Subdivision C - Determination of age during proceedings
Proposed subsection 3ZQF - Circumstances where judge or magistrate may order carrying out of a forensic procedure
17. This provision allows a judge or magistrate presiding at a committal, trial, or appeal in respect of an alleged offence by a person to order the carrying out of a prescribed procedure if he or she is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of the offence, an adult or a juvenile. This is an important consideration for the judge or magistrate for sentencing purposes. It makes sense to have a separate provision apply during proceedings in case a doubt as to whether a person is a juvenile or adult only arises at this late stage. It would be cumbersome and unnecessary to require a separate application to a magistrate at that stage.
Subdivision D - Communication of orders by judges or magistrates
Proposed section 3ZQG - Orders made by judges or magistrates concerning carrying out a prescribed procedure
18. Proposed section 3ZQG requires a judge or magistrate to keep a written record of the order, and of the reasons for making the order, authorising the carrying out of a prescribed procedure. An investigating official is also required to tell the suspect before carrying out a prescribed procedure ordered by a judge or magistrate of the reasons for making the order, the arrangements for carrying out the prescribed procedure and that reasonable force may be used on the suspect to secure compliance. The judge or magistrate may also give additional directions as he or she thinks fit.
Subdivision E - Matters relating to the carrying out of the prescribed procedure
Proposed section 3ZQH - Application of appropriate medical standards
19. Proposed section 3ZQH provides legislative reinforcement for the requirement that prescribed procedures must be conducted according to appropriate medical and other professional standards. The provision is modelled on existing subsection 23XJ(2) in the Crimes Act 1914, which operates in the forensic procedure context.
Proposed section 3ZQI - Reasonable and necessary force
20. Proposed section 3ZQI contains the reasonable and necessary force proviso, which is a standard provision in relation to investigatory powers. This is necessary to ensure that modest restraint does not constitute common assault. Of course, the proviso does not apply when a suspect has consented to undergoing a prescribed procedure - use of force is inconsistent with notions of consent. The proviso also provides parties with clear guidance that only necessary and reasonable force may be used. The provision parallels existing subsection 23XJ(1) in the Crimes Act 1914, which operates in the forensic procedure context.
Subdivision F - Disclosure and destruction of age determination information
Proposed section 3ZQJ - Disclosure of age determination information
21. The purpose of proposed section 3ZQJ is to protect the privacy of persons who have undergone a prescribed procedure. Proposed subsection 3ZQJ(2) lists the permitted purposes for which a person may disclose age determination information. The permitted purposes include disclosure to allow: compliance with rules governing detention, investigation, institution of criminal proceedings; for a purpose related to the conduct of proceedings, an investigation by the Privacy Commissioner or the Commonwealth Ombudsman; or if the person consents in writing to the disclosure. The provision is based on existing section 23YP in the Crimes Act 1914 and the new section 23YO that will replace it in the Bill.
22. Proposed subsection 3ZQJ(1) underpins the list of permissible disclosures by creating an offence carrying a substantial maximum penalty of imprisonment for 2 years. It is proposed that a person shall be guilty of an offence if that person, having access to any age determination information improperly discloses that information. The high maximum penalty of imprisonment for 2 years is justifiable because a strong deterrent is required to protect a persons privacy.
Proposed section 3ZQK - Destruction of age determination information
23. Proposed section 3ZQK again protects the privacy of persons who have undergone a prescribed procedure by requiring age determination information to be destroyed. Under proposed subsection 3ZQK(1) destruction is required if, after 12 months, proceedings have not been instituted against the person to whom the information relates. Destruction is also required under proposed subsection 3ZQK(2) if the person is acquitted, or not convicted, of an offence.
24. In limited circumstances the age determination information may be retained for longer periods. If another investigation into, or proceeding against, the person is pending, the age determination information need not be destroyed. Further, a magistrate may extend the retention period if satisfied there are special reasons for doing so under proposed subsection 3ZQK(3).
25. The provision almost exactly replicates existing section 3ZK of Part 1AA of the Crimes Act 1914, which requires destruction of identification material.
Item 2 - Amendment to Part 1C of the Crimes Act 1914
26. This item inserts a new provision for subsection 23C(7) of Part 1C of the Crimes Act 1914. Proposed paragraph 23C(7)(fa) stipulates that the time taken in applying to a magistrate for an order authorising the carrying out of a prescribed procedure or in actually carrying out the prescribed procedure is to be disregarded for the purposes of calculating the investigation period under Part 1C of the Crimes Act 1914. It should be noted that all questioning of the suspect must be suspended or delayed during this time. If questioning continues then the investigation period remains on foot.
27. Disregarding this time from the investigation period is consistent with the approach taken for the forensic procedures provisions. Paragraph 23C(7)(g) refers to the time taken in applying for magisterial authorisation for conducting a forensic procedure and paragraph 23C(7)(I) refers to the time taken in carrying out a forensic procedure.