CRIMES ACT 1914 SECT 23WT

(1)

The magistrate must be satisfied on the balance of probabilities that:

(a)

the person on whom the procedure is proposed to be carried out is a suspect; and

(b)

on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and

(c)

there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

(d)

the carrying out of the forensic procedure is justified in all the circumstances.

(2)

In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

(3)

In balancing those interests, the magistrate must have regard to the following matters:

(a)

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

(b)

the degree of the suspect's alleged participation in the commission of the relevant offence;

(c)

the age, physical and mental health, cultural background and (where appropriate) religious beliefs of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);

(d)

if the magistrate believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—the suspect's customary beliefs (if any), to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);

(e)

if the suspect is a child or an incapable person—the welfare of the suspect;

(f)

whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

(g)

if the suspect gives any reasons for refusing to consent—the reasons;

(h)

if the suspect is in custody:

(i)

the period for which the suspect has already been detained; and

(ii)

the reasons for any delay in proposing the carrying out of the forensic procedure;

(i)

any other matter considered relevant to balancing those interests.