Section 23XWU — Crimes Act 1914: Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person

(1) A magistrate may order the carrying out of a forensic procedure on a child or incapable person if: (a) the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or (b) the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe: (i) that the parent or guardian is a suspect; and (ii) that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or (c) the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent; or (d) in the case of a forensic procedure requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part. (1A) However, a magistrate is not authorised to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency. (2) In determining whether to make an order under this section, the magistrate is to take into account the following: (a) whether this Part would authorise the carrying out of the forensic procedure apart from this section; (b) if the forensic procedure is being carried out for the purposes of the investigation of a particular offence—the seriousness of the circumstances surrounding the commission of the offence; (c) the best interests of the child or incapable person; (d) so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out; Note: A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3). (e) except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out; (f) whether the carrying out of the forensic procedure is justified in all the circumstances. (3) An order under this section may: (a) require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or (b) specify the period for which forensic material obtained from carrying out the procedure may be retained.