Question 7–3 Should Commonwealth, state and territory laws 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? If so, how?
7.139 Barriers to obtaining consent for the taking of DNA and other forensic samples under Commonwealth, state and territory forensic procedures legislation, may prejudice the investigation and prosecution of crimes against people with disability.
7.140 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 people with disability are victims of sexual assault.
7.141 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.
7.142 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.
7.143 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’ 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. 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 incapable person; and ‘so far as they can be ascertained, any wishes’ of the incapable person with respect to the forensic procedure.
7.144 Procedures in other jurisdictions may require investigators to obtain an emergency order from the state or territory guardianship tribunal, resulting in significant delay.
7.145 The existing Commonwealth provisions may help to address problems with the timeliness of obtaining consent, by allowing a 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.
guardianship legislation dealing with consent to medical treatment to include reference to the taking of forensic samples.
Eg, Crimes Act 1914 (Cth) pt ID; Police Powers and Responsibilities Act 2000 (Qld) ch 17; Forensic Procedures Act 2000 (Tas).
Eg, Crimes Act 1914 (Cth) pt ID.
An ‘incapable person’ is defined to mean an adult who is incapable of understanding the general nature, effect and purposes of a forensic procedure; or of indicating whether he or she consents to it: Crimes Act 1914 (Cth) s 23WA.
Ibid s 23XWU(1).
Ibid s 23XWU(2).
That is, consent may be given for a person incapable of doing so, by a ‘responsible person’—including a spouse or de facto partner; a parent; public advocate or guardian; or ‘another person who has responsibility for the day-to-day care of the incapable person’. An example of this approach is found in Western Australian legislation dealing with ‘identifying procedures’: Criminal Investigation (Identifying People) Act 2002 (WA) s 20(1)(b).