Supplementary Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Notes on items
Item 1
1. This item ensures that if particular equipment is to be operated to determine a person's age that equipment must (as opposed to may) be operated by an appropriately qualified person.
2. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 2
3. This item inserts 'independent' before 'adult person' in proposed subparagraph 3ZQC(1)(b)(ii) to reinforce that the adult person must be independent. It is important to note that before a prescribed procedure can occur with informed consent under the proposed measures two separate sets of consent are required. First, the informed consent of the person on whom the prescribed procedure will be carried out is required. Secondly, the informed consent of either a parent or guardian of that person or if a parent or guardian is not available or acceptable to that person, an independent adult person (other than an investigating official involved in the investigation of the person) is also required. Without these two separate consents, a prescribed procedure can only proceed if it is authorised by a magistrate under proposed section 3ZQB.
4. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 3
5. This item amends proposed subsection 3ZQC(2) of the Bill. It is proposed to require an investigating official to inform each of the persons from whom consent to a prescribed procedure is being sought of the reasons, as well as the purpose, for which the prescribed procedure is to be carried out.
6. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 4
7. This item amends proposed subsection 3ZQC(2) of the Bill. It is proposed to require an investigating official to inform each of the persons from whom consent to a prescribed procedure is being sought they may both withdraw consent at any time. Although the ability to withdraw at any time is implicit in the nature of consent, it is considered preferable to expressly state this in the Bill.
8. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 5
9. This item amends proposed subsection 3ZQC(2) of the Bill. It is proposed to require an investigating official to inform each of the persons from whom consent to a prescribed procedure is being sought that the person on whom the procedure is to be carried out may have, as far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.
10. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 6
11. Proposed new subsection 3ZQC(3) in this item makes it clear that those persons required to give consent before a prescribed procedure can be carried out can do so in person or be telephone or other electronic means. It is anticipated that wherever possible, the consent of an independent adult person will be obtained in person. However, there may be situations where a suspect is apprehended in remote northern Australia, for example, where it may not be possible to obtain independent consent in person. The amendment is consistent with proposed subsection 3ZQB(2), which allows an investigating official to also apply to a magistrate for an order authorising the carrying out of a prescribed procedure in person or by telephone or by other electronic means.
12. Proposed new subsection 3ZQC(4) in this item protects the rights of a person under Part 1C of the Crimes Act 1914, which confers statutory safeguards to persons in the context of Commonwealth investigations. The same safeguards would apply in the early investigative stages when a prescribed procedure to determine age may well be carried out. However, it is considered important to expressly acknowledge that these safeguards are not affected by the age determination measures contained in the Bill. The right of a suspect to communicate with a friend, relative or legal practitioner (see section 23C of the Crimes Act 1914) is particularly important. In the context of foreign nationals apprehended as suspects for a Commonwealth offence, the right to communicate with their relevant consular office in Australia is also an important safeguard (see section 23P of the Crimes Act 1914).
13. Both the amendments in this item respond to recommendations made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.
Item 7
14. This item amends proposed section 3ZQH to make clear that the prescribed procedure must be carried out in compliance with either or both of the appropriate medical standards and other relevant professional standards. The regulations prescribed under proposed subsection 3ZQA(2) will describe the appropriate medical or other professional standards. For example, for the purposes of a wrist x-ray procedure, the relevant medical standards are likely to be those developed by the Royal Australian and New Zealand College of Radiologists.
15. This amendment responds to a recommendation made by the Senate Legal and Constitutional Legislation Committee in its Report on the Bill dated 27 March 2001.