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Thursday, 24 March 1994
Page: 2288


Senator SPINDLER (8.45 p.m.) —by leave—I move:

23.Clause 4, page 24, after proposed section 3ZH, insert the following section:

Meaning of informed consent by a suspect

"3ZHA.(1) A suspect gives informed consent to a request for identification material if he or she consents to the request after a constable referred to in subsection 3ZH(3) informs the suspect, in language likely to be understood by the suspect:

(a)of the purpose for which the material is required; and

(b)of the offence of which the suspect is suspected; and

(c)that the material may be used in evidence in court; and

(d)that the suspect may refuse to give his or her identification material.

"(2) Subject to subsection (3), the constable who informs a suspect of the matters in subsection (1) must:

(a)tape record; or

(b)record in writing signed by the suspect;

the giving of that information and the suspect's responses, if any.

"(3) If a suspect is in custody in relation to an indictable offence, the giving of information under subsection (1) and the suspect's responses, if any, must be tape recorded.

"(4) If information and a suspect's responses are tape recorded in accordance with this section, the constable giving the information must give or send by post to the suspect or his or her legal practitioner without charge:

(a)the tape recording or a copy of it within 7 days; and

(b)if a transcript of the tape recording is prepared, a copy of the transcript.

"(5) If information and a suspect's responses are recorded in writing in accordance with this section, the constable requesting the identification material must give or cause to be given to the suspect a copy of the signed record.

24.Clause 4, page 24, after proposed section 3ZH, insert the following section:

  Meaning of informed consent by a person

"3ZHB(1) A person who is not a suspect gives informed consent to a request for identification material if he or she consents to the request after a constable referred to in subsection 3ZH(3) informs the person, in language likely to be understood by the person:

  (a)of the purpose for which the material is required; and

  (b)whether the material may be used in evidence in court; and

  (c)that the person may refuse to give the material.

"(2)The constable who informs a person of the matters under subsection (1) must:

  (a)tape record; or

  (b)recorded in writing signed by the person;

the giving of that information and the person's responses, if any.

"(3) If information and a person's responses are tape recorded in accordance with this section, the constable giving the information must give or send by post to the suspect or his or her legal practitioner without charge:

(a)the tape recording or a copy of it within 7 days; and

(b)if a transcript of the tape recording is prepared, a copy of the transcript.

"(4) If information and a person's responses are recorded in writing in accordance with this section, the constable requesting the identification material must give or cause to be given to the person a copy of the signed record.

"(5) In this section "person" includes a parent, guardian or other capable person.".

This amendment seeks to ensure that the consent given by a suspect is informed. I believe that the amendments moved in this way will produce that particular result. It is clear that the suspect, to provide informed consent, must be given the information in a language he or she would understand to appreciate the purpose of the identification material, the offence of which he or she is suspected, that the material may be used in evidence before a court and that the suspect may refuse his or her consent to provide this material.

  The giving of this information must either be tape-recorded or recorded in writing and signed by the suspect. A copy of that taperecording or record in writing must then be provided to the suspect's legal practitioner. This provision has been used previously in state legislation, for instance, in Victoria prior to its recent and quite notorious Crimes Amendment Act 1993. I commend these amendments to the committee.