Page 3304 - Week 11 - Tuesday, 22 September 2015
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The material must be reasonably necessary for the identification of the person generally or in connection with an offence, or if the officer suspects on reasonable grounds that the person has committed another offence and that the material is likely to identify the person as having committed the other offence. Consequently, the explanatory statement includes several charts to make these different situations clear. It is a useful addition for the reader. I am comfortable with the safeguards that are applicable to these powers. The explanatory statement also gives a reasonable explanation for the rationale for the power and how it is balanced with human rights considerations.
In addition to the requirement for police to obtain magistrates orders in certain situations, when a person is not in an impaired state the police must explain the offence allegedly committed by the person, why the material is relevant and that the material may be used as evidence. Where practical, the police also have to allow a person with parental responsibility to be present when the explanation is given and the material is taken. When it is not practicable, the police have to allow the presence of an interview friend.
The last area I will touch on is the issue of an incapable person. The bill changes the definition of “incapable person” in the Crimes (Forensic Procedures) Act to include adults who are temporarily incapacitated. The main example of this is a person who is affected by drugs, alcohol or sedation. The definition is relevant because an incapable person is not able to consent to various procedures under the act. The bill makes an amendment to allow a close associate of an incapable person to consent to non-intimate forensic procedures on behalf of that incapable person. Non-intimate forensic procedures, as I said earlier, are procedures such as taking fingerprints or photographs.
It is easy to see that the definition of “close associate” is important to the scope of this change. It would be a common occurrence for a couple of intoxicated people to end up in police custody together. One person might be so intoxicated as to be incapable while the other might not. It would not be appropriate for the police to let the incapable person’s intoxicated mate consent to forensic procedures on the incapable person. The mate could even be someone that the incapable person had simply just met at the pub that night and, with a few drinks in them, they were mates forever.
The definition of “close associate” has been worded carefully in the bill. A “close associate” includes the person’s domestic partner, carer, a relative or friend. Although this may still seem quite broad, the definition in the bill then makes it clear that the close associate does not include a person under 18 or a person who appears to have impaired decision-making capacity. This would include a person who is also intoxicated.
It is also important to note that a person who is deemed to be an incapable person must be aged 18 years and that the amendment in this bill to allow consent by a close associate relates only to non-intimate forensic procedures. The different and stricter process remains in place for any intimate forensic procedures. The bill makes some other minor changes which have been discussed already and which I will not go into again. In conclusion, I will be supporting this bill today.
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