Senate

Second Reading Speech

Senator Abetz (Special Minister of State)

I move:

That the bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

This Bill contains important measures to provide for a person to be tested with prescribed equipment (for example, an x-ray) to determine their age, where it is not possible or practicable to determine age by other means.

The measures are strictly identification procedures (specifically, powers to conduct wrist x-rays to determine the age of a suspect or defendant). Consequently, it is proposed to insert the amendments into Part 1AA of the Crimes Act, which already contains provisions relating to the taking of identification material (such as fingerprints, photographs, recordings, and samples of handwriting).

The Bill meets two required outcomes:

(1)

determining a suspect's age at the outset or during the course of an investigation; and

(2)

resolving doubt as to a defendant's age that arises during court proceedings.

At the outset I would like to indicate that the measures can only be used if a person is suspected of having committed, or is charged with, a Commonwealth offence. So the measures will affect offenders and not, for example, unauthorised boat arrivals. It is not a criminal offence to enter Australia unlawfully. Unlawful non-citizens arriving in Australia will continue to be dealt with under existing procedures in the Migration Act 1958.

It is important to determine a person's age, particularly if they are juveniles, so that their interests can be properly safeguarded throughout the investigatory stage and subsequent criminal proceedings. The question of whether a suspected offender is an adult or juvenile impacts upon many areas of the criminal justice process, including:

(1)

the lawful arrest of a suspect;

(2)

the lawful questioning and interviewing of a suspect;

(3)

the rights to which a suspect is entitled;

(4)

the decision to institute criminal proceedings against a suspect;

(5)

the admissibility of resulting evidence;

(6)

for sentencing purposes; and perhaps most importantly

(7)

the safe detention of a suspect.

Because such important considerations are at stake, the Government is right to takes its obligations in this area very seriously.

Determining the age of a suspect is particularly important in relation to people smuggling offences, where foreign nationals (such as the crew on a vessel containing suspected unlawful non-citizens) refuse to provide details of their age, or make false claims that they are under 18 years old, and there is no documentation or means to prove otherwise.

Existing provisions are inadequate for this purpose.

Previously, reliance was 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 purposes. X-rays were used as an identification procedure in many cases, and the results employed as evidence of the suspect's age. However, R v Hatim, Kadir and Others [2000] NTSC 53, a case decided late last year, Justice Thomas of the Northern Territory Supreme Court held that section 258 did not authorise the use of an x-ray. This ruling was confirmed in a subsequent case. In any case, there are cases where the necessary prerequisites for employing section 258 do not apply, for example, 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. In most cases, evidence of age is 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 for the use of equipment to determine the age of a person.

Therefore, there is currently no means of determining a person's age in circumstances where no documentation is accessible. This is entirely unsatisfactory. Bringing certainty to this critical question will be achieved by this Bill, which fairly balances the public interest in equipping law enforcement with the means to determine age so that, among other things, adults will be detained separately from juveniles, against the competing interest of upholding a person's physical integrity.

The age determination powers contained in the Bill will send a strong message to those engaged in people smuggling that they cannot circumvent or abuse the Australian legal system by deceptively claiming they are under 18 years old. It will also avoid the undesirable situation of placing adult suspects in juvenile detention facilities or vice versa.

The proposed amendment will contain appropriate safeguards consistent with those applicable to identification and forensic procedures in section 3ZJ and Part 1D of the Crimes Act. The right of a suspect to communicate with a friend, relative or legal practitioner, to which existing section 23G of the Crimes Act 1914 refers, is expressly retained. In the context of foreign nationals apprehended as suspects for a Commonwealth offence, the right to communicate with their relevant consular office in Australia, to which existing section 23P of the Crimes Act 1914 refers, is another important safeguard expressly retained by the Bill.

Criminal sanctions along the lines of existing provisions in Part 1D, which carry maximum penalties of 2 years' imprisonment, will deter unauthorised disclosures of age determination information.

The Bill is predicated on informed consent - use of the prescribed equipment for investigation and related purposes will only be permitted where the informed written consent of both the detained person and an appropriate independent adult has been obtained; or by order of a magistrate. Among the most important matters required to be explained to the persons giving consent are the following:

(1)

the purposes and reasons for the prescribed procedure;

(2)

the fact that the persons giving consent can withdraw that consent; and

(3)

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.

During trial, a court would be able to order the use of prescribed equipment. In either case, the use of equipment will be explained to the person, in a language in which the person has reasonable fluency.

In those instances where the age of a suspect or defendant cannot be accurately determined the current legal position will prevail. Unless the prosecution can discharge the burden of establishing on the balance of probabilities that a defendant is an adult, the defendant will be treated as a juvenile. This ensures that no injustice will occur if a defendant's age is still in doubt at the time of trial.

The Senate Legal and Constitutional Legislation Committee reported on the provisions of the Bill on 27 March 2001. The provisions of the Bill were only referred to the Committee on 7 March 2001 and I would like to record my thanks for the Committee's diligent and hard work in releasing a report less than 3 weeks after that initial reference. In the course of the debate in the House of Representatives most of the Committee's recommendations were accepted and incorporated into either the Bill or the Revised Explanatory Memorandum, pursuant to the Committee's recommendations.

The Committee, in recommendation 9 of its report, requested that a statement from the Attorney-General's Department or the Australian Federal Police be incorporated into Hansard. I intend to make such a statement before the Senate now, confirming that the needs of special groups are met throughout the investigatory stage, but particularly when being questioned by law enforcement officers.

AFP officers are bound by the requirements of Part 1C of the Crimes Act 1914. Many provisions in Part 1C relate specifically to meeting the needs of special groups, such as children, people of Aboriginal or Torres Strait Islander background, and people of non-English speaking backgrounds. Specific safeguards include:

(1)

in section 23C, a 2 hour investigation period for children or people of Aboriginal or Torres Strait Islander background (rather than a 4 hour period applicable to other people);

(2)

in section 23H, a requirement for an interview friend to be contacted and be present while a person of Aboriginal or Torres Strait Islander background is being interviewed;

(3)

in section 23K, a requirement for an interview friend to be contacted and be present while a child is being interviewed, where a child is a person under 18 years of age;

(4)

in section 23N, a requirement for an interpreter to be contacted and be present during an interview in cases where an investigating official believes a person is unable to communicate with reasonable fluency in English, whether because of inadequate knowledge of the English language or a physical disability.

In addition to these safeguards, AFP officers also comply with the AFP Practical Guide on Interpreters and Translators. The Guide requires that (and I quote) where a member proposes to interview, interrogate or take a statement from any person who, for any reason, has difficulty in understanding or speaking with reasonable fluency in the English language, the member shall arrange for the services of an interpreter competent in that person's language (end quote). In practice, this policy extends to all situations where AFP officers are required to provide information to a suspect who does not appear to understand English with reasonable fluency.

In respect of carrying out forensic procedures under Part 1D of the Crimes Act 1914, AFP officers are bound by section 23YDA. Under this provision, if an AFP officer believes on reasonable grounds that the suspect is unable to communicate orally with reasonable fluency in English, because of inadequate knowledge of the English language or a physical disability, the officer must arrange for the presence of an interpreter, and, until the interpreter is present must not do any of the following:

(1)

ask the suspect to consent to a forensic procedure;

(2)

order the carrying out of a non-intimate forensic procedure on the suspect;

(3)

apply to a magistrate for a final order or an interim order for the carrying out of a forensic procedure on the suspect;

(4)

caution the suspect;

(5)

carry out, or arrange for the carrying out, of a forensic procedure on the suspect; or

(6)

provide the suspect with an opportunity to view a video recording of a forensic procedure.

These safeguards and this Bill demonstrate the Government's commitment to ensuring young persons are appropriately treated by the criminal justice process and not subjected to procedures or standards applicable to adults.

(Quorum formed)