The Court held that a magistrate making a final forensic procedure order under s 33 of the Crimes (Forensic Procedure) Act 2000 (ACT) is not required to assess the lawfulness of the method by which the procedure was carried out; the authorisation decision and the conduct of the procedure are separate statutory processes. However, the Court found (obiter) that the magistrate below erred in concluding that informed consent was not required under s 54(2)(c) of the CFP Act — a person must be told they are entitled to a same-sex examiner before their consent to a cross-gender procedure can be valid, as a Human Rights Act 2004-compatible interpretation demands. The appropriate remedy for any breach in the conduct of the procedure lies in the admissibility challenge regime under Part 2.9 (s 85) of the CFP Act, not in judicial review of the final order.
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