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Monday, 2 April 2001
Page: 26177


Mr KERR (5:58 PM) —The Crimes Amendment (Age Determination) Bill 2001 amends the Crimes Act to allow for prescribed procedures to be used to determine a person's age if a person is suspected of having committed a Commonwealth offence and where it is not practical to determine that person's age by other means. We understand that the prescribed procedures which the government proposes to introduce will mean X-rays of the wrist bones, which set in adult form at about the age of 18. The bill will allow an official to arrange for an age determination procedure to be carried out with either the consent of the suspect or by a magistrate's order. Before doing so there must be reasonable grounds to suspect that the person has committed a Commonwealth offence, some uncertainty as to whether the person is under 18, and the necessity that the uncertainty be resolved in order to determine the application of the rules governing the person's detention or the investigation or institution of criminal proceedings.

The distinction between adults and children is an important one as there are many protections afforded juveniles in an investigation or with respect to their detention, trial and sentencing. It is the government's claim that there is a growing need for an age determination measure because many people who are the subject of investigations, if they are suspected of having committed a Commonwealth offence, are not Australian citizens and may not have documentation which enables the authorities readily to ascertain their age. The government has identified people-smuggling and drug importation as two criminal enterprises where the age bracket of a number of suspects has been hard to determine.

It is also to be noted that the procedures provided for in this bill will be used in investigations for the whole range of Commonwealth offences, not just for people-smuggling and drug offences. But, of course, those are the matters which have given rise to the sense that this legislation is imperative. The bill requires the suspect to be informed of the purpose and nature of the procedure, any equipment to be involved and its risks, and that the seeking of consent is to be recorded. If a procedure is required, reasonable and necessary force will be allowed in order to carry it out. The bill also contains penalties for the improper disclosure of information obtained through these age determination procedures and requires that the information be destroyed 12 months after an investigation concludes.

When this bill was introduced, the opposition indicated that it understood the reasons for the legislation but suggested to the government that it would be appropriate to refer it to the Senate Legal and Constitutional Committee for detailed examination. This bill, like others that the parliament has considered recently, involves the use of new technology for law enforcement purposes. Whilst we should be taking advantage of new technology as it arises, we believe it is important to ensure that any legislation empowering the use of such technology, and the actual way in which it is to be used, includes appropriate concerns for the protection of civil liberties.

The bill was referred to the Senate Legal and Constitutional Committee for review, and the committee's report contained a number of recommendations that the bill should be amended and also suggestions that the explanatory memorandum should be altered. The opposition have had discussions regarding these recommendations with government advisers who, in turn, have had discussions with the minister. We are aware that the government has already circulated a number of amendments to the bill today, amendments which come with the support of the opposition and which arise out of the committee's recommendation.

It is rare that I take these opportunities, but I commend the work of the Senate Legal and Constitutional Committee. I have held the view for a considerable period of time that we underutilise committees of this House. In many instances I think it would be very appropriate for ministers' advisers to reflect on suggesting to the minister that an alternative course would be to suggest any legislation of this nature be referred to the House committee for report. But, in practice, it tends to be the case that governments expect the compliance of the House of Representatives, assume it will pass the legislation in the form in which it is introduced by government, and see the real discussion and debate occurring in the Senate. That does mean that the Senate Legal and Constitutional Committee has a very large workload.

I place on record my appreciation, in particular, for the chair of the Senate Legal and Constitutional References Committee, Senator McKiernan, who I believe has done an extraordinarily good job dealing with the wide range of legislation that has been put before his committee in the recent months. Might I also—and I think this is something I should do—express some appreciation for the sometimes irritating contributions of Senator Barney Cooney. Barney Cooney is one of those key individuals who has a role in this parliament that he will never let go of. The role he has taken to himself is to stand up for the principles of civil liberties which sometimes, he believes, get insufficient attention by both government and opposition. He is just as difficult a contender for an opposition shadow minister for justice to deal with as he is for those on the government side. I am of the belief that this parliament's dignity is immeasurably enhanced by the contributions that Senator Cooney has made over the years and I believe that the legislative program of this parliament, and the legislation that emerges out of the parliamentary process, is much better for those contributions.

I think the community also ought to be aware that there is within our ranks in this parliament, both in the House and in the Senate, a number of people who hold the principles of civil liberties as their prime reason for being a member of the parliament, and their commitment to these objectives remains undiminished and unflagged notwithstanding many years of service in this place. I think Senator McKiernan, who chairs that committee, carries an enormous burden of work. I think he deserves special commendation because, in a sense, he is expected, with his committee, to deal with matters that come forward, often with little notice and with an expressed urgency to deal with those matters, and he has a membership which includes senators on both sides who are not going to allow themselves to be used as rubber stamps. I think his wisdom, in the way in which he has managed that process over a long period of time, is something which should be acknowledged in the remarks I make in the debate on this legislation.

Several comments arising from the committee's recommendations and amendments should be made. The first point I should turn to is that the committee recommended that where a person is the subject of an investigation that person should be informed of the availability of legal assistance. The Australian Federal Police and the Attorney-General's Department have advised the opposition that a person subject to investigation is always given that information and that they will be provided with that information prior to being asked to consent for an age determination procedure. This will not be reflected in an amendment to the legislation but is reflected in the undertakings and advice that we have received from the Attorney-General's Department and I am certain is supported by the minister and will be made operationally clear to those who will be dealing with these measures as they arise.

The committee recommended that the bill be amended to ensure that a person who undertakes an age determination procedure can be accompanied by a person of his or her choice. The government have circulated amendments which provide for this and I appreciate their cooperation. The bill allows for an age determination procedure to be carried out with the consent of the person and the consent of a parent or guardian. Remembering that this may be an infant or a child, it would not be sufficient simply to obtain their consent. Before the test of age is carried out, we do not know whether or not they are under the age of 18. For that reason, the bill provides that, as well as their individual consent to the procedure, consent would have to be obtained from a parent or guardian. The committee recommended that consent had to be obtained from the person and from an independent adult. That recommendation stemmed from a concern that it might not be appropriate for a member of an investigating team—a member of a police force or of the Customs Service who may not be involved in the particular investigation but would otherwise possibly be available as an adult to give consent—to give consent on behalf of children in such instances. The government will be moving amendments to the bill to ensure that that consent is obtained from an independent person. Again, I thank the government's advisers and the minister for their cooperation.

The committee recommended amendments to the bill to provide that a person must be informed of the reasons and purposes for carrying out a procedure. The reason for that is that it is important a person not only consents to the procedure but understands what such a procedure might be used for. Government amendments adopting this recommendation will be moved and of course we will support them. The government has agreed with the opposition to move an amendment which picks up the committee's recommendation that a person who has given consent has to be told before the procedure takes place that that consent could be withdrawn. The committee has also recommended that legislation be amended to specify that age determination equipment must be operated by an appropriately qualified person, and the government will certainly be addressing that measure. I interpolate here that, while currently the government anticipates that the regulations will provide for age determination procedures to be undertaken by means of the X-ray of wrist bones, the legislation would allow other procedures to be used. Therefore, it is important that the undertakings that the government has given in this regard are made and on the Hansard record.

I also indicate that the government's advisers have indicated to the opposition that, if any other procedures are proposed for scheduling or for regulation, they would not intend them to be any more intrusive than the taking of X-rays of wrist bones. They believe that, as technologies emerge and as identification procedures become better able to utilise scientific procedures, there may be less intrusive mechanisms. Certainly, while the language of the legislation is quite broad, the opposition would not want to be seen in any way to be supporting the proposition that we would consent to regulations allowing more intrusive processes. Given that we have been given assurances that that is not intended, all we can do is to note that point and to indicate that, were a future government ever so minded to move in that direction, we would be quite willing to propose disallowance of such regulations. We would not see it as necessary. I think that is well understood on both sides of the political divide.

The opposition also supports the committee's recommendations that the bill be amended so as to ensure that the procedure is carried out in a manner consistent with appropriate medical standards and appropriate professional standards. The government will be accepting this recommendation and the opposition certainly is glad of that. The committee made a number of representations which will not require amendments to the bill but which will require some government action. The opposition has been assured by the government that the following will occur. The explanatory memorandum will be revised so as to make it clear that the bill applies to all Commonwealth offences and that it will apply to age determination only in respect of people who appear to be young people. This might be thought to be an abundance of caution. The committee suggested that it apply only to people between the ages of only 15 and 25. The government quite correctly said that it is possible that somebody beyond those ages might superficially appear to be around the age of 18, particularly as it applies to the whole diversity of humankind who may come forward in relation to suspicion of commission of offences against the Commonwealth. Human physiology develops differently in different parts of the world, and there may be the odd person above the age of 25 who still appears slightly under the age of 18. So, rather than accepting that specific recommendation of the committee, the government has indicated that it will only be used where there is reasonable doubt about whether a person falls in that band of around the age of 18 but that it may actually be applied to people who are slightly older than 25, if it is the case that their physiognomy suggests that there is some doubt.

The government has also undertaken to make a statement in the Senate, when the bill comes before that place, confirming that the needs of special groups will be met at the interview and in all other processes. Again, this ought to be straightforward. Plainly, when legislation of this nature applies to people who may have intellectual disabilities or who may lack English language skills, it is important that appropriate steps be put in place to take into account their particular needs. Again, I thank the minister's advisers and the minister for their cooperation in that regard. The opposition will be supporting this bill in the House in the anticipation that all these measures which have been discussed are carried through—some, of course, through amendments which have been tabled and others which will require government action through the minister's statements in the Senate. The committee also recommended that information, including radiological studies relevant to age determination of young persons of various racial and cultural backgrounds, including women, be regularly sought and used in order to ensure that the prescribed procedures are of maximum utility; that is, to make certain that they are as accurate in their readings as possible. The opposition endorses that recommendation and expects the government will, in the ordinary course, ensure that it is pursued.

On the basis that the government's amendments have been circulated and that they take into account those concerns, we will be supporting the passage of this bill. I should again indicate that this has been a good exercise in cooperation between the minister and his advisers and the opposition. Originally, this measure was pegged onto a larger piece of legislation regarding forensic procedures to which it was not directly related. I expressed at the time some concern that, given that forensic procedures legislation had already been the subject of a parliamentary inquiry, these measures might send alarm signals through the whole system and delay a package of measures which had reached a point where there was broad consensus. The minister accepted that point of view and then reintroduced the legislation as stand-alone legislation and, through this process, has continued to liaise with the opposition. I think that the legislation, as it has emerged, will be effective in achieving the ends that the government has sought, but will also include a few additional safeguards which have emerged through the parliamentary process.

Finally, I commend to the minister's advisers the legislation I introduced in the House this morning regarding the civil confiscation of assets of those engaged in crime. The minister has made a public statement that he proposes to take such legislation to cabinet. The advice that I have received—not through any inappropriate disclosure by any of the minister's advisers, might I make the claim—is that that submission has not yet gone to cabinet. It would seem to me that, where there has been good cooperation, there would be no reason for this government not to adopt the legislation put forward in the House this morning by the opposition—legislation which has had a long gestation and which has been available in exposure draft now for well over a year—to accommodate an objective that the government says it intends to achieve.

So this process of cooperation should not be one way. I believe that it would be very unfortunate and more than a little hypocritical if the government, having said that it wishes to proceed in that direction, does not allow parliamentary time for the debate on the opposition's legislation and, indeed, the passage of that legislation through the House so that we can actually obtain a result which is effective in terms of addressing one of the key areas of concern in the community; that is, attacking crime at the point where crime is most vulnerable to attack—its proceeds. After all, people who are engaged in serious crime undertake that crime for financial motives. They do that in order to secure for themselves rewards, riches and lifestyles which are beyond them through the normal licit activities that we encourage within the community. If there are effective ways of stripping them of their assets that would be more readily available to law enforcement but without infringing those fundamental principles of civil liberty that we hold important, it is a task that I think all in this parliament should commit themselves to. And, given that the opposition has taken the lead in relation to this matter and has twice introduced that legislation, might I commend to the minister's advisers sitting opposite that they take back to the minister my request that parliamentary time be accorded to this legislation. It may well be a matter that could have proper examination in a House of Representatives standing committee or go through this House and be addressed by a Senate committee. However it is addressed, it is not a matter that can be put into cold storage and allowed to slide off the agenda when so manifestly the Law Reform Commission and law enforcement in Australia have said it must be on the agenda. With those few remarks, I commend this legislation to the House.