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Legislative Assembly for the ACT: 1996 Week 7 Hansard (18 June) . . Page.. 1790 ..

MR HUMPHRIES (continuing):

Mr Speaker, this Bill repeals and replaces section 349ZX of the Crimes Act 1900. The existing section is a simple provision which gives a police officer of or above the rank of sergeant the authority to ask a medical practitioner to conduct an examination of a person in lawful custody on a charge of committing an offence. It had always been thought, and one court case had decided, that the "examination" included the taking of a blood, saliva or hair sample - if necessary, without the consent of the person.

An example of the kind of situation when this might be necessary is when a person is charged with rape and refuses to provide a sample of blood which would be needed for the purpose of DNA testing. However, in 1995, in the case of Fernando, the New South Wales Court of Appeal held that the provision did not allow the taking of a blood sample without the consent of the person. As a consequence, the New South Wales Parliament has amended its Crimes Act to deal with this situation. It is likely that an ACT court would follow the New South Wales decision, as our legislation is based very closely on the New South Wales legislation, and this Bill aims to deal with that possibility.

This Bill primarily clarifies that a sample of blood, saliva or hair may be taken in the course of the examination by the medical practitioner. It also clarifies that taking the sample may be done without the consent of the person charged. The Bill, however, provides a number of new protections, and these follow the principles in the model forensic procedures Bill. I would like to give a little more detail about the model Bill, as I hope to introduce such a Bill, suitably adapted for the Territory situation, by early next year at the latest. The model Bill is a very detailed piece of legislation dealing with all aspects of forensic procedures. It was developed by the Model Criminal Code Officers Committee at the request of the Standing Committee of Attorneys-General. It was developed over a quite long period of time and involved extensive consultation throughout Australia. Most jurisdictions of the Standing Committee of Attorneys-General, including this Territory, gave in-principle endorsement to the model Bill in 1995 and, as I have mentioned, the Government has already approved preparation of the necessary legislation to implement that model Bill. As I have mentioned, finalisation of an ACT version of the model Bill is only a few months away, and the urgency of responding to the Fernando decision is such that the present Bill has been developed. This is the context in which I am bringing this Bill to the Assembly.

The most significant protection we have added is that an examination can now be authorised only by an order issued by a magistrate. The other major protections are that the examination must be carried out in circumstances of privacy and that the samples must be destroyed as soon as practicable after the conclusion of the proceedings relating to the offence and the exhaustion of any right of appeal. I believe that, with these amendments, we will deal with the more urgent situation in a way that achieves an appropriate balance between the needs of law enforcement and the rights of the person charged. I commend the Bill to the Assembly.

Debate (on motion by Ms Follett) adjourned.

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