Division 4A
Determining a person’s age
Subdivision A
Preliminary
3ZQA Definitions
(1) In this Division:
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.
appropriately qualified, in relation to the carrying out of a prescribed procedure, means:
(a) having suitable professional qualifications or experience to carry out the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed procedure.
Commonwealth offence means:
(a) an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982; or
(b) a State offence that has a federal aspect.
investigating official means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory; or
(c) a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.
prescribed procedure means a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person’s age.
(2) The regulations may specify a particular procedure, which may include the taking of an X-ray of a part of a person’s body, to be a prescribed procedure for determining a person’s age.
(3) A procedure prescribed for the purposes of subsection (2):
(a) may involve the operation of particular equipment that is specified for the purpose; and
(b) must require that equipment to be operated by an appropriately qualified person.
(4) Before the Governor-General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.
Subdivision B
Determination of age during investigation
3ZQB Circumstances where investigating official may seek authority to carry out a prescribed procedure
(1) If:
(a) an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings;
the investigating official may, whether or not the person is in custody at the time, arrange for the carrying out of a prescribed procedure in respect of the person only if:
(c) the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.
(2) An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(3) In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the application of the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings.
3ZQC Obtaining of consents for the carrying out of a prescribed procedure
(1) For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the procedure;
(b) either:
(i) a parent or guardian of the person; or
(ii) if a parent or guardian is not available or is not acceptable to the person — an independent adult person (other than an investigating official involved in the investigation of the person) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(2) Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:
(a) the purpose and reasons for which the prescribed procedure is to be carried out; and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular equipment — the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and
(e) the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and
(ea) that the persons giving the requisite consent may withdraw that consent at any time; and
(f) that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a copy of that record; and
(h) 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.
(3) The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
(4) Nothing in this section affects the rights of a person under Part IC, in particular a person’s rights under:
(a) section 23G (Right to communicate with friend, relative and legal practitioner); or
(b) section 23P (Right of foreign national to communicate with consular office).
3ZQD Withdrawal of consent
If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct)