101QMedical examinations

101Q  Medical examinations  (1) An investigating officer may arrange for a medical practitioner to examine a person in lawful custody in respect of a service offence for the purpose of securing evidence of, or relating to, the service offence if, and only if, the investigating officer believes on reasonable grounds that the examination is likely to provide such evidence and:  (a) the person has given his or her consent in writing; or  (b) an authorized officer has, under subsection (4), approved the examination.  (2) An investigating officer may arrange for a medical practitioner to take a specimen from a person in lawful custody in respect of a service offence for the purpose of having the specimen analysed or otherwise examined if, and only if, the investigating officer believes on reasonable grounds that analysis or other examination of the specimen is likely to provide evidence of, or relating to, the service offence and:  (a) the person has given his or her consent in writing; or  (b) an authorized officer has, under subsection (4), approved the taking of the specimen.  (3) An investigating officer may:  (a) make application to an authorized officer in person; or  (b) if it is impracticable for the investigating officer to make application to an authorized officer in person—make application to an authorized officer by telephone;   for an approval for the purpose of subsection (1) or (2).  (4) The authorized officer may, if he or she is satisfied that the investigating officer has reasonable grounds for the belief referred to in subsection (1) or (2), whichever is applicable, give his or her approval by instrument in writing.  (4A) The authority conferred by subsection (4) on an authorised officer only extends to the giving of approval in respect of a medical examination of a kind, or the taking of a specimen, that is reasonably necessary for the purpose of obtaining evidence relating to the presence or absence of a prohibited drug in the blood or urine of a person.  (4C) In considering whether to give approval under subsection (4), an authorised officer may take into account the physical health of the person to whom the application for approval relates.  (5) Where the application was made to the authorized officer by telephone, the authorized officer shall cause the instrument of approval to be forwarded to the investigating officer.  (6) Before arranging for a medical practitioner to examine a person in lawful custody or to take a specimen from such a person, an investigating officer shall inquire whether the person wishes to have a medical practitioner of the person’s choice present during the examination or the taking of the specimen, as the case may be, and, if the person states that the person does so wish, shall:  (a) provide reasonable facilities to enable the person to arrange for a medical practitioner of the person’s choice to be so present; and  (b) unless it would be impracticable to do so—arrange for the examination to be made or the specimen to be taken, as the case may be, at a time when the medical practitioner chosen by the person can be present.  (7) Subsection (6) does not apply in relation to a person in custody in respect of a service offence where an investigating officer believes on reasonable grounds that, if the examination of the person or the taking of a specimen from the person, as the case requires, is delayed until a time when a medical practitioner chosen by the person can be present, evidence of, or relating to, the service offence may be lost or destroyed or may otherwise disappear.  (8) An investigating officer may use such reasonable force as is necessary to take a person to a medical practitioner for the purpose of an examination of the person in accordance with subsection (1) or the taking of a specimen from the person in accordance with subsection (2), as the case requires.  (9) Where, in accordance with this section, a medical practitioner examines a person in lawful custody in respect of a service offence or takes a specimen from such a person and:  (a) no proceedings in respect of the service offence, or a related service offence, are instituted against the person:  (i) within a period of 12 months after the examination is made or the specimen is taken, as the case may be; or  (ii) if that period is extended under subsection (10)—within that period as from time to time so extended; or  (b) proceedings in respect of the service offence, or a related service offence, are instituted within that period, but a service tribunal acquits the person of a charge of the service offence, or a related service offence, or dismisses such a charge; the person having the custody of the report of the examination or the report of the analysis or other examination of the specimen, as the case may be, and any investigating officer having the custody of a copy of such a report, shall cause it to be destroyed.  (10) An authorized officer may, upon application by a person having the custody of the report of an examination by a medical practitioner of a person in lawful custody in respect of a service offence, or of the report of an analysis or other examination of a specimen taken from such a person, or by an investigating officer having the custody of a copy of such a report, and upon being satisfied, by information on oath or affirmation, that there are special reasons for doing so, extend, in respect of the examination or the analysis or other examination of the specimen, as the case may be, the period referred to in subparagraph (9)(a)(i), or that period as previously extended under this subsection.  (11) Where a person in lawful custody in respect of a service offence is examined by a medical practitioner in accordance with subsection (1), or a specimen is taken from such a person in accordance with subsection (2), an investigating officer concerned in the investigation of the service offence, shall, upon application by the person, cause the person to be provided with a copy of the report of the medical practitioner in respect of the examination or the report of the analysis or other examination of the specimen, as the case may be.  (12) Where a medical practitioner makes an examination of a person, or takes a specimen from a person, in pursuance of arrangements duly made, or purporting to be duly made, by an investigating officer under this section, proceedings do not lie against the medical practitioner, or against any other person acting under his or her direction or otherwise assisting him or her, in respect of anything reasonably done in good faith by the medical practitioner or by the other person for the purpose of making the examination or taking the specimen, as the case may be.  (13) Nothing in this section:  (a) prevents a medical practitioner from examining, or taking a specimen from, a person at the request of the person or for the purpose of treating the person for illness or an injury; or  (b) affects the power of a service tribunal or, in the case of a court martial, the judge advocate of the court martial, to exclude evidence obtained through unreasonable force or inhuman treatment.  (14) In this section, specimen, in relation to a person, includes a sample of, or taken from, the body of the person.  (15) In the application of this section to a person who is in custody at a place outside Australia, a reference to a medical practitioner includes a reference to a person who is registered or licensed as a medical practitioner under:  (a) a law of that place; or  (b) a law of a prescribed place; being a law that provides for the registration or licensing of medical practitioners. 101QA  Offence of refusing to submit to medical examination etc.  (1) If:  (a) a person is in lawful custody in respect of a service offence; and  (b) an investigating officer has arranged for a medical practitioner to examine the person for the purpose of securing evidence of, or relating to, the service offence; and  (c) either:  (i) the person has given his or her consent in writing to the examination; or  (ii) an authorised officer has, under subsection 101Q(4), approved the examination; and  (d) the investigating officer has informed the person that refusal or failure by him or her to submit to the examination will constitute an offence; and  (e) after having been so informed, the person refuses or fails to submit to the examination; the person commits an offence for which the maximum punishment is imprisonment for 6 months.  (1A) It is a defence to a charge under subsection (1) if the person proves that he or she had a reasonable excuse for refusing or failing to submit to the examination. Note: The defendant bears a legal burden in relation to the matter in subsection (1A). See section 13.4 of the Criminal Code.  (2) If:  (a) a person is in lawful custody in respect of a service offence; and  (b) an investigating officer has arranged for a medical practitioner to take a specimen from the person; and  (c) the officer believes on reasonable grounds that analysis or other examination of the specimen is likely to provide evidence of, or relating to, the service offence; and  (d) either:  (i) the person has given his or her consent in writing to the taking of the specimen; or  (ii) an authorised officer has, under subsection 101Q(4), approved the taking of the specimen; and  (e) the investigating officer has informed the person that refusal or failure by him or her:  (i) to submit to the taking of the specimen; or  (ii) to do any act reasonably necessary to enable the specimen to be taken;   will constitute an offence; and  (f) after being so informed, the person:  (i) refuses or fails to submit to the taking of the specimen; or  (ii) refuses or fails to do an act reasonably necessary to enable the specimen to be taken; the person commits an offence for which the maximum punishment is imprisonment for 6 months.  (2A) It is a defence to a charge under subsection (2) if the person proves that he or she had a reasonable excuse for refusing or failing to do the act mentioned in subparagraph (2)(f)(i) or (ii). Note: The defendant bears a legal burden in relation to the matter in subsection (2A). See section 13.4 of the Criminal Code.  (3) It is a reasonable excuse for the purposes of subsection (1A) or (2A) that a person has a medical condition that may be aggravated by the conduct of the medical examination or the taking of the specimen, as the case requires.  (4) Nothing in this section renders a person guilty of an offence for refusing to submit to a medical examination or the taking of a specimen to the extent that the person proves that the examination or the taking of the specimen, as the case may be, was not reasonably necessary for the purpose of obtaining evidence relating to the presence or absence of a prohibited drug in the blood or urine of a person. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.