Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (7 of 2012)

Schedule 3   Amendments relating to providing mutual assistance in criminal matters

Part 4   Carrying out forensic procedures at the request of a foreign country etc.

Mutual Assistance in Criminal Matters Act 1987

112   After Part IV

Insert:

Part IVA - Forensic procedures

Division 1 - Requests by Australia

28A Requests by Australia for forensic procedures

(1) If:

(a) a proceeding relating to a criminal matter has commenced in Australia; and

(b) there are reasonable grounds to believe carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the proceeding;

Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in connection with the proceeding.

(2) If:

(a) an investigation relating to a criminal matter has commenced in Australia; and

(b) carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the investigation;

Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in relation to the investigation.

(3) To avoid doubt, Australia may request that a forensic procedure be carried out in the foreign country even if, under Australian law, the forensic procedure could not have been carried out by using processes similar to those used in the foreign country.

(4) Subsection (5) applies if:

(a) Australia makes a request under this section; and

(b) the foreign country obtains any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the carrying out (as requested by Australia) of a forensic procedure on a particular person.

(5) The thing obtained by the foreign country:

(a) is not inadmissible in evidence in the proceeding; or

(b) is not precluded from being used for the purposes of the investigation;

on the ground alone that it was obtained otherwise than in accordance with the request.

Division 2 - Requests by foreign countries

28B Requests by foreign countries for forensic procedures

(1) If a foreign country requests that a forensic procedure be carried out on a person, the Attorney-General may authorise a constable to apply, in accordance with Part ID of the Crimes Act 1914, to a magistrate for an order for the carrying out of the forensic procedure on the person, so long as, if the person is a suspect within the meaning of subsection 23WA(1) of that Act, the constable is an authorised applicant within the meaning of that subsection.

(2) The Attorney-General must not authorise a constable under subsection (1) unless the Attorney-General is satisfied of the following matters:

(a) a request has been made by a foreign country that a forensic procedure be carried out on a person;

(b) unless the person is a child or an incapable person - the foreign country has:

(i) started investigating whether the person has committed a foreign serious offence against its laws; or

(ii) started proceedings against the person for a foreign serious offence;

(c) the person is, or is believed to be, in Australia;

(d) the foreign country has given:

(i) appropriate undertakings in relation to the retention, use and destruction of forensic material, or of information obtained from analysis of that forensic material; and

(ii) any other undertakings that the Attorney-General considers necessary;

(e) unless the person is a child or an incapable person - the person has been given an opportunity to consent to the forensic procedure and has not consented to it;

(f) if the person is a child or an incapable person, the matters specified in subsection (3).

(3) If the person is a child or an incapable person, the Attorney-General must:

(a) be satisfied that either of the following applies:

(i) the consent of the parent or guardian cannot reasonably be obtained or has been withdrawn;

(ii) the parent or guardian is a suspect in relation to the foreign serious offence; and

(b) believe that, having regard to the best interests of the child or incapable person, it is appropriate to make the authorisation.

28C Providing forensic evidence to foreign countries

(1) If:

(a) a foreign country requests that a forensic procedure be carried out on a person; and

(b) the Attorney-General authorises a constable to make an application of the kind mentioned in subsection 28B(1); and

(c) a forensic procedure is carried out on the person;

the Attorney-General may direct the constable as to how the forensic evidence is to be provided to the foreign country.

(2) A direction by the Attorney-General under subsection (1) is not a legislative instrument.