Crimes Act 1958

If a child referred to in section 464L(2) or the child's parent or guardian refuses to consent to the taking of the child's fingerprints or the parent or guardian cannot be located, a police officer may apply to the Children's Court for an order under subsection (5).

An application under subsection (1)—

must be in writing supported by evidence on oath or by affirmation or by affidavit; and

if the child is held in a police gaol or is detained in a youth justice custodial centre, must state that fact.

Notice of an application under subsection (1) must be served on—

a parent or guardian of the child; and

if the child is not in custody within the meaning of this Subdivision, the child.

The court may dispense with the requirement of subsection (3)(a) if satisfied that it is impracticable for the applicant to comply.

The Children's Court may make an order directing a child who is 12 years of age or over but under 15 years of age to give the child's fingerprints if satisfied on the balance of probabilities that—

there are reasonable grounds to believe that the child has committed an indictable offence or a summary offence referred to in Schedule 7; and

in all the circumstances the making of the order is justified.

In considering whether the making of the order is justified, the court must take into account amongst other things—

the seriousness of the circumstances surrounding the commission of the offence; and

the alleged degree of participation by the child in the commission of the offence; and

the age of the child.

A child in respect of whom an application under subsection (1) is made—

is not a party to the application; and

may not call or cross-examine any witnesses; and

may not address the court, other than in respect of any matter referred to in subsection (5)(a) or (b) or subsection (6).

In exercising the right of address under subsection (7)(c), a child may be represented by a legal practitioner or, with the leave of the court, a parent or guardian of the child.

If the court makes an order under subsection (5)—

a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person must be present during the taking of the child's fingerprints; and

a police officer may use reasonable force to take the fingerprints; and

the taking of the fingerprints must be recorded by audiovisual recording, if practicable, or otherwise by audio recording.

After an order under subsection (5) is executed—

the independent person, if any, who witnessed the taking of the fingerprints must endorse on the order the independent person's name and sign the endorsement; and

the person who took the fingerprints must endorse on the order the name of the person, if any, who made the audiovisual recording of the taking of the fingerprints; and

the person who took the fingerprints must give a copy of the order so endorsed to the child.

The endorsements required by subsection (10) to be made on an order under subsection (5) may be made on a copy of the order transmitted by facsimile machine.

If the Children's Court makes an order under subsection (5), it may issue a warrant authorising the person to whom it is directed—

to break, enter and search, if necessary, any place where the child named or described in the warrant is suspected to be; and

to arrest the child named or described in the warrant; and

to take the child without delay to the nearest accessible police station for fingerprinting.

If the Children's Court makes an order under subsection (5) or issues a warrant under subsection (12), it must—

give reasons for its decision; and

cause a note of the reasons to be entered in the records of the court.

The failure of the court to comply with subsection (13) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464Q(1)(a).

If a child is apprehended under a warrant issued under subsection (12), the warrant ceases to have effect immediately after the child's fingerprints have been taken.

If the Children's Court makes an order under subsection (5) in respect of a child who is held in a prison, police gaol or youth justice custodial centre, the court must also order that the officer in charge of the place at which the child is held must take the fingerprints of the child or cause them to be taken and must deliver the fingerprints to the applicant within a period of time specified in the order.