Forensic procedures

7.194   Barriers to obtaining consent for the taking of DNA and other forensic samples under Commonwealth, state and territory forensic procedures legislation,^[235] may prejudice the investigation and prosecution of crimes against persons with disability.

7.195   In particular, some legislation regulating the taking of intimate forensic samples from people deemed unable to provide consent may result in undue delay, which may compromise the value of DNA samples as evidence. This may be of particular concern where persons with disability are victims of sexual assault.

7.196   Forensic procedure legislation generally provides that, where forensic samples are needed from a person who is not a suspect, and who is incapable of giving consent, the starting point is that the consent of a parent or guardian is required. However, the taking of DNA samples may be outside the scope of ‘medical treatment’ for the purposes of a guardian’s decision-making powers.

7.197   Problems in obtaining forensic samples from victims may arise where:

• there is no guardian, and parents are unable or unwilling to consent; and
• there is a guardian, but the guardian does not have authority to authorise consent to the forensic procedure.

7.198   At a Commonwealth level, forensic procedures are regulated by pt ID of the Crimes Act. Under the Crimes Act, a magistrate may order the carrying out of a forensic procedure on an ‘incapable person’^[236] if the consent of a guardian cannot reasonably be obtained; or the guardian refuses consent and the magistrate is satisfied that there are reasonable grounds to believe that the parent or guardian is a suspect and the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence.^[237] In determining whether to make the order, the magistrate must take into account, among other things, the seriousness of the alleged offence; the ‘best interests’ of the incapable person; and ‘so far as they can be ascertained, any wishes’ of the incapable person with respect to the forensic procedure.^[238]

7.199   Procedures in other jurisdictions may require investigators to obtain an emergency order from the state or territory guardianship tribunal, resulting in significant delay.

7.200   The existing Commonwealth provisions may help to address problems with the timeliness of obtaining consent, by allowing a state or territory magistrate to order a forensic procedure. Other approaches might involve amending:

• forensic procedures legislation to adopt a hierarchy of decision-makers similar to that found in some guardianship legislation dealing with medical treatment;^[239] or
• guardianship legislation dealing with consent to medical treatment to include reference to the taking of forensic samples.

7.201   In the Discussion Paper, the ALRC asked whether Commonwealth, state and territory laws should be amended to avoid delays in obtaining consent to the taking of forensic samples from people who are incapable of giving consent, and who have been victims of crime.^[240]

7.202   In response, some stakeholders expressed concern that avoiding delay might be used as a rationale for not making full efforts to obtain consent, for example, by determining how a person communicates and providing the support they require to do so.^[241]

7.203   In the absence of any firm indication that Commonwealth forensic procedures legislation is responsible for undue delay in obtaining forensic samples, the ALRC makes no recommendation for reform.