(1) Definitions In this Act— Aboriginal legal aid organisation means an organisation that provides legal assistance to Aboriginal persons or Torres Strait Islanders, being an organisation prescribed by the regulations for the purposes of this definition.adult means a person of or above 18 years of age.appropriately qualified , in relation to carrying out a forensic procedure, means—
(a) having suitable professional qualifications or experience to carry out the forensic procedure, or (b) qualified under the regulations to carry out the forensic procedure. authorised applicant for an order for the carrying out of a forensic procedure on a suspect means—
(a) the police officer in charge of a police station, or (b) a custody manager within the meaning of the , or Law Enforcement (Powers and Responsibilities) Act 2002 (c) an investigating police officer in relation to an offence, or (d) the Director of Public Prosecutions. authorised officer has the same meaning as it has in the. Law Enforcement (Powers and Responsibilities) Act 2002 child means a person who is at least 10 years of age but under 18 years of age.correctional centre medical officer , in relation to a correctional centre or other place of detention, means any person appointed or acting as medical officer for the correctional centre or other place of detention.corresponding law is defined in section 95.crime scene index is defined in section 90.destroy is explained in subsection (5).DNA database system is defined in section 90.excluded volunteer is defined in section 76A.exercise a function includes perform a duty.forensic material means—
(a) samples, or (b) hand prints, finger prints, foot prints or toe prints, or (c) photographs, or (d) casts or impressions, taken from or of a person’s body. forensic procedure means—
(a) an intimate forensic procedure, or (b) a non-intimate forensic procedure, (c) but does not include—
(d) any intrusion into a person’s body cavities except the mouth, or (e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken. Note— Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person. function includes a power, authority or duty.incapable person means an adult who—
(a) is incapable of understanding the general nature and effect of a forensic procedure, or (b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out. inform is explained in subsection (4).informed consent in relation to—
(a) a suspect—is defined in section 9, and (b) a serious indictable offender—is defined in section 67, and (b1) an untested former offender—is defined in section 75F, and (b2) an untested registrable person—is defined in section 75V, and (c) a volunteer or parent or guardian of a volunteer—is defined in section 77. interview friend is explained in section 4.intimate forensic procedure means any of the following—
(a) an external examination of a person’s private parts, (b) the carrying out on a person of an other-administered buccal swab, (c) the taking from a person of a sample of the person’s blood, (d) the taking from a person of a sample of the person’s pubic hair, (e) the taking from a person of a sample of any matter, by swab or washing, from the person’s private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person’s private parts, (g) the taking from a person of a dental impression, (h) the taking of a photograph of the person’s private parts, (i) the taking from a person of an impression or cast of a wound from the person’s private parts. investigating police officer means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.legal representative of a suspect means an Australian legal practitioner acting for the suspect.missing persons index is defined in section 90.non-intimate forensic procedure means any of the following—
(a) an external examination of a part of a person’s body, other than the person’s private parts, that requires touching of the body or removal of clothing, (b) the carrying out on a person of a self-administered buccal swab, (c) the taking from a person of a sample of the person’s hair, other than pubic hair, (d) the taking from a person of a sample (such as a nail clipping) of the person’s nails or of matter from under the person’s nails, (e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person’s body, other than the person’s private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person’s body, other than the person’s private parts, (g) the taking from a person of the person’s hand print, finger print, foot print or toe print, (h) the taking of a photograph of a part of a person’s body, other than the person’s private parts, (i) the taking from a person of an impression or cast of a wound from a part of the person’s body, other than the person’s private parts, (j) the taking of measurement of a person’s body or any part of a person’s body (other than the person’s private parts) whether or not involving the marking of the person’s body. offender means—
(a) a serious indictable offender, or (b) a prescribed offender. offenders index is defined in section 90.other-administered buccal swab means a buccal swab carried out by someone other than the person on whom it is carried out.parent of a child means a person who has parental responsibility for the child.parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.participating jurisdiction is defined in section 95.place of detention , in relation to a person the subject of an intensive correction order that is subject to a home detention condition under the, means the place at which the person resides pursuant to the order. Crimes (Sentencing Procedure) Act 1999 Note— A home detention order is taken to be an intensive correction order that is subject to a home detention condition. See Part 29 of Schedule 2 to that Act. police station includes—
(a) a police station of a State or Territory, and (b) a building that is occupied by members of the NSW Police Force and that is nominated by the Commissioner of Police for the purposes of this paragraph, and (c) a building occupied by the Australian Federal Police. prescribed offence means—
(a) an indictable offence, or (b) any other offence under a law of the State prescribed by the regulations for the purposes of this paragraph. prescribed offender means a person who is convicted of a prescribed offence.private parts means a person’s genital area, anal area or buttocks, and, in the case of a female or transgender person who identifies as a female, includes the person’s breasts.recognised transgender person means a person the record of whose sex is altered under Part 5A of theor under the corresponding provisions of a law of another Australian jurisdiction. Births, Deaths and Marriages Registration Act 1995 recording includes audio recording and video recording.responsible person , in relation to the DNA database system, means the person declared by the regulations to be the person responsible for the care, control and management of the system.sample has a meaning affected by subsection (3).self-administered buccal swab means a buccal swab carried out by the person on whom it is carried out.senior police officer means a police officer of or above the rank of sergeant.serious indictable offence means—
(a) an indictable offence under a law of the State or of a participating jurisdiction that is punishable by imprisonment for life or a maximum penalty of 5 or more years imprisonment, or (b) an indictable offence under a law of the State that is punishable by a maximum penalty of less than 5 years imprisonment, being an offence the elements constituting which (disregarding territorial considerations) are the same as an offence under a law of a participating jurisdiction that is punishable by a maximum of 5 or more years imprisonment. serious indictable offender means a person who has been convicted of a serious indictable offence.suspect means the following—
(a) a person whom a police officer suspects on reasonable grounds has committed an offence, (b) a person charged with an offence, (c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person. (d) time out means—
(a) the time (if any) that is reasonably required to convey a suspect from the place where the suspect presents himself or herself to an investigating police officer to the nearest premises where facilities for carrying out a forensic procedure in accordance with this Act are available to the investigating police officer, (b) any time that is reasonably spent waiting for an investigating police officer or appropriately qualified person who is to carry out the forensic procedure to arrive at the place where the procedure is to be carried out, (c) any time that is reasonably spent waiting for facilities or equipment that are needed to carry out the procedure to become available, (d) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Act, (e) any time during which carrying out the procedure is suspended or delayed to allow such an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out, (f) any time during which carrying out the procedure is suspended or delayed to allow the suspect to consult with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person at the place where the procedure is to be carried out as provided by this Act, (g) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention, (h) any time during which carrying out the procedure is suspended or delayed to allow the suspect to recover from the effects of intoxication due to alcohol or another drug (or both), (i) any time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or receive refreshments or to give the suspect access to toilet and other facilities, (j) any time during which carrying out the procedure is suspended or delayed at the request of the suspect, (k) any time that is reasonably spent waiting for a senior police officer or a Magistrate or other authorised officer to make an order as provided by this Act. transgender person is defined in subsection (6).untested former offender is defined in section 75A.untested registrable person is defined in section 75P.volunteer is defined in section 76.volunteers (limited purposes) index is defined in section 90.volunteers (unlimited purposes) index is defined in section 90.Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) (3) Taking samples For the purposes of this Act, a sample taken from a person includes a sample taken from the person that consists of matter from another person’s body.
(1) This section lists the people who may act as an interview friend of a suspect or serious indictable offender for the purposes of a provision of this Act referring to an interview friend. Different people may act as interview friends of a suspect or offender for the purposes of different provisions of this Act.
(1) A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.
(1) This section applies where—
(a) a police officer intends to ask a suspect to consent to a forensic procedure, and (b) the suspect identifies as an Aboriginal person or Torres Strait Islander. (2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer—
(a) asks the suspect to consent to the forensic procedure under section 11, and (b) gives the suspect a written statement setting out—
(i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (h), (i), (j) and (k), and (ii) the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and (c) informs the suspect about the forensic procedure in accordance with section 13, and (d) complies with the rest of this section. (3) The police officer must not ask the suspect to consent to the forensic procedure unless—
(a) an interview friend is present, or (b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present. Note— Section 106 relates to proving a waiver under paragraph (b). (4) Before asking the suspect to consent to a forensic procedure, the police officer must—
(a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure, and (b) notify such a representative accordingly.
(1) The police officer must (personally or in writing) inform the suspect of the following matters—
(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording as provided by section 100, (b) the purpose for which the forensic procedure is required, (c) the offence in relation to which the police officer wants the forensic procedure carried out, (d) the way in which the forensic procedure is to be carried out, (e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law, (f) that the forensic procedure will be carried out by an appropriately qualified police officer or person, (g) if relevant, the matters specified in subsection (2), (h) if the suspect identifies as an Aboriginal person or a Torres Strait Islander—that the suspect’s interview friend may be present while the forensic procedure is carried out, (i) that the suspect may refuse to consent to the carrying out of the forensic procedure, (j) the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable), (k) if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect—that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions. (2) Suspect’s right to have medical practitioner or dentist present during some forensic procedures In the case of—
(a) an intimate forensic procedure, or (b) a non-intimate forensic procedure that involves the taking of an impression or cast of a wound from a part of the suspect’s body, the police officer must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of procedure) of his or her choice be present while the procedure is being carried out.
(1) A person is authorised to carry out a non-intimate forensic procedure on a suspect by order of a senior police officer under section 18. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.
(1) The senior police officer may make an order under section 18 in person or, if that is not practicable, by telephone, radio, telex, facsimile or other means of transmission.
(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities—
(a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances.
(1) An order may be made in the presence of the suspect concerned or, at the discretion of the Magistrate, ex parte. (2) A suspect who is a child or an incapable person, or who identifies as an Aboriginal person or Torres Strait Islander—
(a) must have an interview friend present if the suspect is present, and (b) may be represented by a legal representative. (3) Subsection (2) (a) does not apply to a suspect who identifies as an Aboriginal person or Torres Strait Islander if the suspect expressly and voluntarily waives his or her right to have an interview friend present.
(1) An authorised officer may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if—
(a) section 23 applies, and (b) the authorised officer is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure, and (c) the authorised officer is satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, as referred to in section 24 (1), when the application is finally determined.
(1) An authorised applicant (but no other person) may, without bringing a suspect before an authorised officer and without obtaining an order under section 24, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay. (2) An application seeking an interim order authorising the carrying out of an intimate forensic procedure on a suspect may be made only if the person is a suspect in relation to a prescribed offence. (3) An application for an interim order must—
(a) if it is made in person—be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1), and (b) specify the type of forensic procedure sought to be carried out. (4) An application for an interim order must be made—
(a) in person, or (b) if it is not practicable to make the application in person and there are facsimile facilities readily available—by facsimile, or (c) if it is not practicable to make the application in person and there are no facsimile facilities readily available—by telephone, radio, telex, email or other means of communication.
(1A) This section applies when an application for an interim order is made in person, by facsimile, by email or by other electronic means of written communication. (1) The applicant for an interim order must, at the time of applying for the interim order, make a record (the applicant’s record ) of—
(a) the application, and (b) the grounds for seeking the order, (c)–(e) and sign the record.
(1) This section applies when an application for an interim order is not made in person, by facsimile, by email or by other electronic means of written communication. (2) The authorised officer must, at the time of, or as soon as practicable after, making an interim order, make a record ( the authorised officer’s record ) of—
(a) the order made, and (b) the date and time when the order was made, and (c) the reasons for making it, and sign the record.
(1) If the suspect is not under arrest, the Magistrate or other authorised officer may, on the application of a police officer, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.
Note— Some provisions contained in this Part also apply to the carrying out of forensic procedures on serious indictable offenders, volunteers and persons under 10 years of age. See sections 65, 76 (4) and 81A (4).
(1) The table to this section shows, for each forensic procedure specified in the first column of the table, the persons who may carry out the procedure under this Act. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 52. (2) The third column of the table to this section shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect’s choice is present while the forensic procedure is carried out. Note— Section 53 makes detailed provision for the presence of a medical practitioner or dentist of the suspect’s choice while a forensic procedure is carried out.
(1) A person who is authorised to carry out a forensic procedure under the table to section 50 is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.
(1) This section applies if the suspect is—
(a) a child, or (b) an incapable person.
(1) This section applies if the suspect (not being a child or an incapable person) identifies as an Aboriginal person or Torres Strait Islander. (1A) For the purpose of determining whether this section applies to a suspect, the investigating police officer must ask the suspect if the suspect identifies as an Aboriginal person or Torres Strait Islander.
(1) The carrying out of a forensic procedure must be recorded by electronic means unless—
(a) the suspect objects to the recording, or (b) the recording is not practicable. (1A) Subsection (1) does not apply to—
(a) the taking of a hand print, finger print, foot print or toe print, or (b) the taking of a photograph, but only if the taking of such a photograph constitutes a non-intimate forensic procedure.
(1) If material from a sample taken from a suspect is analysed in relation to the investigation of an offence, the investigating police officer must ensure that, if the suspect so requests in writing—
(a) a copy of the suspect’s DNA profile that has been derived from the sample, and (b) a statement as to whether or not a match has been found, in relation to the investigation, between the suspect’s DNA profile and any other DNA profile, are made available to the suspect.
(1) Intimate forensic procedures to which Part applies This Part applies to the following intimate forensic procedures—
(a) the taking of a sample of blood, (b) the carrying out of an other-administered buccal swab.
(1) The police officer must (personally or in writing) inform the serious indictable offender of the following—
(a) the purpose for which the forensic procedure is required, (b) if the police officer wants the forensic procedure carried out in relation to an offence—the offence concerned, (c) the way in which the forensic procedure is to be carried out, (d) that the forensic procedure may produce evidence against the offender that might be used in a court of law, (e) that the forensic procedure will be carried out by a person who may carry out the procedure under Part 6 as applied by section 65, (f) if the forensic procedure is the taking of a sample of blood—that the offender may request that the correctional centre medical officer be present while the blood is taken, (g) that the offender may refuse consent to the carrying out of the forensic procedure, (h) the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable), (i) the effect of section 84 (if applicable), (j) that information obtained from analysis of forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the DNA database system may be used under Part 11 or 12 and, in particular, that the information may be compared with information from the DNA database systems of other participating jurisdictions.
(1) A police officer may apply to any court for an order for the carrying out of a forensic procedure to which this Part applies on a serious indictable offender who is serving a sentence of imprisonment in a correctional centre or other place of detention. (2), (3)
(1) A police officer may request an untested registrable person (other than a child or an incapable person) to consent to a forensic procedure to which this Part applies being carried out on the person.
(1) The court may order the carrying out of a forensic procedure to which this Part applies on the untested registrable person if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.
(1) An untested registrable person in respect of whom a forensic procedure is ordered to be carried out under section 75ZC must not, without reasonable excuse, refuse or fail to permit the forensic procedure to be carried out. Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(1) In this Act, volunteer means—
(a) a person (other than a child or an incapable person) who consents to a request by a police officer for the person to undergo a forensic procedure, or (b) a child who consents, and whose parent or guardian consents, to a request by a police officer for the child to undergo a forensic procedure, or (c) an incapable person whose parent or guardian consents to a request by a police officer for the person to undergo a forensic procedure, but does not include a suspect, a person under 10 years of age or an excluded volunteer. (2) A person is authorised to carry out a forensic procedure on a volunteer (other than a child or an incapable person) with the informed consent of the volunteer given in accordance with section 77.
(1) In this Part, child means a person under 10 years of age.
(1) This section applies to the carrying out of a forensic procedure on a child for the following purposes—
(a) in relation to the investigation of an offence under Part 3 or Subdivision 2 of Division 1 of Part 4 of the of which the child is a victim, Crimes Act 1900 (b) to eliminate the child’s forensic material from other forensic material found at a crime scene in relation to an offence.
(1) The carrying out of a forensic procedure under this Part must be recorded by electronic means unless—
(a) a parent or guardian of the child objects to the recording, or (b) the recording is not practicable. (2) Subsection (1) does not apply to—
(a) the taking of a hand print, finger print, foot print or toe print, or (b) the taking of a photograph, other than of the child’s private parts.
(1) This section applies to a person who volunteers to have a forensic procedure carried out for the purposes of placing information obtained from the analysis of the person’s forensic material on the missing persons index.
(1) This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under Part 3, 4 or 5. (2) If—
(a) forensic material has been taken from a suspect, and (b) a period of 12 months has elapsed since the forensic material was taken, and (c) proceedings for an offence in respect of the act or omission in relation to which the forensic material was taken have not been instituted against the suspect, or have been discontinued, the forensic material must be destroyed as soon as practicable unless a warrant for the apprehension of the suspect has been issued. Note— Section 3 (5) explains the meaning of destroy .(3) If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after—
(a) the warrant lapses, or (b) a period of 12 months elapses after the suspect is apprehended. (4) If forensic material has been taken from a person who is a suspect and—
(a) the person is found to have committed an offence to which the forensic material relates but no conviction is recorded, or (b) the person is acquitted of such an offence and—
(i) no appeal is lodged against the acquittal, or (ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn, the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence is pending.
(1) A person must not access information stored on the DNA database system unless the information is accessed in accordance with this section. Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(1) A matching of a DNA profile on an index of the DNA database system specified at the top of a column of the table to this subsection with a DNA profile on an index of the system specified in column 1 of a row of the table—
(a) is not permitted by this Part if “no” is shown at the intersection of the relevant row and column, and (b) is permitted by this Part if “yes” is shown at the intersection of the relevant row and column, and (c) is permitted by this Part in connection with the volunteers (limited purposes) index if “only if within purpose” is shown at the intersection of the relevant row and column, but only if the matching is for a purpose for which the relevant DNA profile was placed on that index.
|
Index of profile to be matched Is matching permitted? |
column 1 column 2 column 3 column 4 column 5 column 6 column 7 column 8 |
crime scene suspects volunteers (limited purposes) volunteers (unlimited purposes) offenders missing persons unknown deceased persons |
crime scene yes yes only if within purpose yes yes yes yes |
suspects yes yes no no yes yes yes |
volunteers (limited purposes) only if within purpose no no no only if within purpose only if within purpose only if within purpose |
volunteers (unlimited purposes) yes no no no yes yes yes |
offenders yes yes only if within purpose yes yes yes yes |
missing persons yes yes only if within purpose yes yes yes yes |
unknown deceased persons yes yes only if within purpose yes yes yes yes
(1) A person—
(a) whose conduct causes any identifying information about a person obtained from forensic material taken from the person under this Act to be recorded or retained in a DNA database system at any time after this Act requires the forensic material to be destroyed, and Note— See, for example, section 88 (2) which requires forensic material taken from a suspect to be destroyed if 12 months has elapsed since the forensic material was taken and proceedings have not been instituted against the suspect. (b) who intends or is reckless as to the recording or retention, is guilty of an offence. Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(1) The Minister may enter into arrangements with the responsible authorities of one or more of the participating jurisdictions for the establishment and maintenance of one or more registers of orders for the carrying out of forensic procedures made under this Act or a corresponding law of a participating jurisdiction.
(1) The Minister may enter into arrangements for any of the purposes set out in subsection (1A) with the responsible authority of one or more participating jurisdictions under which—
(a) information from the DNA database of this State may be transmitted to any jurisdiction that is a party to the arrangements, and (b) information from any such jurisdiction may be transmitted to this State.
(1) A person who has access—
(a) to any information stored on the DNA database system, or (b) to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer, must not disclose that information except as provided by this section.
(1) For the period of 18 months after the commencement of Part 8 the Ombudsman is to keep under scrutiny the exercise of the functions conferred on police officers under this Act. (2) For that purpose, the Ombudsman may require the Commissioner of Police to provide information about the exercise of those functions. (3) The Ombudsman must, as soon as practicable after the expiration of that 18-month period, prepare a report of the Ombudsman’s work and activities under this section and furnish a copy of the report to the Minister, the Minister for Police and the Commissioner of Police.
(Section 120)