(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic procedure without consent is justified in all the circumstances.
(2) In determining whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the senior police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the senior police officer must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect’s alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the senior police officer or can reasonably be discovered by the senior police officer (by asking the suspect or otherwise);
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(f) if the suspect gives any reasons for refusing to consent—the reasons;
(g) any other matter considered relevant to balancing those interests.
(4) Without limiting the matters that the senior police officer may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior police officer must (where appropriate) take into account the religious beliefs of the suspect.
23WP Record of senior police officer’s order
(1) The senior police officer must, at the time of, or as soon as practicable after, make an order under section 23WN, make a record of:
(a) the order made; and
(b) the date and time when the order was made; and
(c) the reasons for making it;
and must sign the record.
(2) The senior police officer must ensure that a copy of the record is made available to the suspect as soon as practicable after the record is made.
Division 5—Forensic procedures on suspect by order of a magistrate
Subdivision A—General
23WQ Forensic procedure may be carried out by order of magistrate
A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under section 23WS or 23XA. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
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23WR Circumstances in which magistrate may order forensic procedure
(1) A magistrate may, under section 23WS or 23XA, order the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(b) the suspect is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(c) under section 23WE, the suspect cannot consent to the forensic procedure; or
(d) the forensic procedure has been requested by a foreign country or an international tribunal.
(2) However, a magistrate is not authorised to order the carrying out of a forensic procedure on a suspect if the procedure has been requested by a foreign law enforcement agency.
Subdivision B—Final orders
23WS Final order for carrying out of forensic procedure
A magistrate may order the carrying out of a forensic procedure on a suspect if:
(a) subsection 23WR(1) applies; and
(b) the magistrate is satisfied as required by section 23WT.
23WT Matters to be considered by magistrate before ordering forensic procedure
(1) The magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(ca) if the forensic procedure has been requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2) In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:
(a) if the forensic procedure has been requested by a foreign country or an international tribunal—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case—balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect’s alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(e) if the suspect is a child or an incapable person—the welfare of the suspect;
(f) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons for refusing to consent—the reasons;
(h) if the suspect is in custody:
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(i) any other matter considered relevant to balancing those interests.
(4) Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.
23WU Application for order
(1) An authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect.
(2) An application for an order must:
(a) be made in writing; and
(b) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a), (b), (c), (ca) and (d); and
(c) specify the type of forensic procedure sought to be carried out; and
(d) be made in the presence of the suspect (subject to any contrary order made by the magistrate).
23WV Securing the presence of suspect at hearing—suspect in custody
(1) If the suspect is in the custody of another constable or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody), the magistrate may, on the application of a constable, issue a warrant directing the person holding the suspect in original custody to deliver the suspect into the custody of the constable (temporary custody) for the hearing of an application for an order under this Division.
(2) The constable given temporary custody must return the suspect to the place of original custody:
(a) if the application for the order is refused—without delay; or
(b) if the order is made—without delay at the end of the period for which the suspect may be detained in custody under section 23XGD.
23WW Securing the presence of suspect at hearing—suspect not in custody
(1) If the suspect is not in custody, the magistrate may, on the application of a constable:
(a) issue a summons for the appearance of the suspect at the hearing of the application; or
(b) issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the magistrate for the hearing of the application.
(2) An application for a summons under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a summons only if satisfied:
(a) that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application; or
(b) that the issue of the summons is otherwise justified.
(4) An application for a warrant under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5) The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance; or
(b) that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is otherwise justified.
23WX Procedure at hearing of application for order
(1) An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the magistrate.
(2) A suspect who is:
(a) a child; or
(b) an incapable person;
must be represented by an interview friend and may also be represented by a legal practitioner.
(3) If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect must be represented by an interview friend and may also be represented by a legal practitioner.
(4) Subsection (3) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the hearing by comparison with members of the Australian community generally.
(5) Any other suspect (including a suspect covered by subsection (4)) may be represented by a legal practitioner.
(6) The suspect or his or her representative:
(a) may call or cross‑examine the applicant for the order; and
(b) may, with the leave of the magistrate, call or cross‑examine any other witnesses; and
(c) may address the magistrate.
(6A) A magistrate must not give leave under paragraph (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross‑examined.
(7) In spite of subsection (2) or (3), the suspect’s interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.
23WY Making of order
(1) If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must:
(a) give reasons for making the order; and
(b) ensure that a written record of the order is kept; and
(c) order the suspect to attend for the carrying out of the forensic procedure; and
(d) inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.
(2) The magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision C—Interim orders
23XA Interim order for carrying out of a forensic procedure
(1) A magistrate may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:
(a) subsection 23WR(1) applies; and
(b) the magistrate is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and
(c) the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters referred to in subsection 23WT(1) when the application is finally determined.
(2) An interim order operates as provided by this Subdivision until a magistrate, at a hearing held under Subdivision B, confirms the interim order or disallows the interim order.
Note: Subsection 23XD(2) requires that an interim order specify the intended date, time and place of the later hearing.
(3) Subdivision B applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 23WS, and an order confirming the interim order is taken to be an order under section 23WS.
23XB Application for interim order
(1) An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 23WS, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.
(2) An application for an interim order must:
(a) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a), (b) and (c); and
(b) specify the type of forensic procedure sought to be carried out.
(3) An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, fax or other means of transmission.
(4) The suspect must be in the presence of the authorised applicant when the application is made.
(5) If the suspect is:
(a) a child; or
(b) an incapable person;
an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(6) If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (5), an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(7) Subsection (6) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the application by comparison with members of the Australian community generally.
(8) If the suspect is not covered by subsection (5) or (6), the suspect’s legal representative (if any) must also be in the presence of the authorised applicant.
(9) In spite of subsection (5) or (6), the suspect’s interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.
23XC Procedure at hearing of application for interim order
(1) If the application is made in person, or by telephone or radio or other form of oral communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect’s legal representative, if any; and
(c) the suspect’s interview friend, if any;
are given an opportunity to speak to the magistrate.
(2) If the application is made by telex, fax or other form of written communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect’s legal representative, if any; and
(c) the suspect’s interview friend, if any;
are given an opportunity to make a written submission to accompany the application, or to speak to the magistrate by telephone, radio or other form of oral communication.
23XD Making of interim order
(1) A magistrate who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, fax or other means of transmission:
(a) that the order has been made; and
(b) of the terms of the order, including the matters mentioned in subsection (2); and
(c) of any orders made or directions given under subsection (3) in relation to the order.
(2) An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.
(3) A magistrate may make such orders and give such directions in relation to an interim order as the magistrate may make or give in relation to an order under section 23WS.
23XE Records of application and interim order
(1) The applicant for an interim order must, at the time of, or as soon as practicable after, applying for the interim order, make a record (the applicant’s record) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the magistrate’s name;
and sign the record.
(2) The applicant must send a copy of the applicant’s record to the magistrate as soon as practicable after it is made.
(3) The magistrate must, at the time of, or as soon as practicable after, making an interim order, make a record (the magistrate’s record) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the reasons for making it;
and sign the record.
(4) The magistrate must send a copy of the magistrate’s record to the applicant as soon as practicable after the record is made.
(5) The applicant must ensure that a copy of the magistrate’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the magistrate’s record.