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.