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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Crimes
Amendment (Forensic Procedures) Bill
2001
No. ,
2001
A Bill for an Act to amend
the Crimes Act 1914, and for other purposes
ISBN: 0642 466472
Contents
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
5 March 2001
A Bill for an Act to amend
the Crimes Act 1914, and for other
purposes
The Parliament of Australia enacts:
This Act may be cited as the Crimes Amendment (Forensic Procedures)
Act 2001.
(1) Sections 1, 2 and 3, items 2 and 3 of Schedule 1, and
Schedule 2 commence on the day on which this Act receives the Royal
Assent.
(2) Subject to subsection (3), Schedule 1 (other than
items 2 and 3) commences on a day to be fixed by Proclamation.
(3) If Schedule 1 (other than items 2 and 3) does not commence
under subsection (2) within the period of 6 months beginning on the day on
which this Act receives the Royal Assent, it commences on the first day after
the end of that period.
(4) Item 78 of Schedule 1 is taken to have commenced immediately
before item 77 of that Schedule. Item 79 of Schedule 1 is taken
to have commenced immediately before item 81 of that Schedule.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 At the end of
section 3ZL
Add:
(4) Nothing in this section derogates from the right to use the provisions
of Part 1D as authority for the taking of fingerprints from a prescribed
offender or a serious offender.
(5) In subsection (4), prescribed offender and
serious offender have the meanings given in subsection
23WA(1).
2 After section 4
Insert:
Application
(1) This section sets out the rules that apply if, under a law of the
Commonwealth relating to criminal matters, a function or power that is neither
judicial nor incidental to a judicial function or power, is conferred on one or
more of the following persons:
(a) a State or Territory judge;
(b) a magistrate;
(c) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1: Magistrate is defined in
section 16C of the Acts Interpretation Act 1901.
Note 2: Justice of the Peace is defined in
paragraph 26(e) of the Acts Interpretation Act 1901.
Functions and powers conferred personally
(2) The function or power is conferred on the person only in a personal
capacity and not, in the case of a State or Territory judge or
magistrate, as a court or a member of a court.
Function or power need not be accepted
(3) The person need not accept the function or power conferred.
Protection and immunity provided
(4) A State or Territory judge or magistrate performing a conferred
function, or exercising a conferred power, has the same protection and immunity
as if he or she were performing that function, or exercising that power,
as, or as a member of, a court (being the court of which the judge or
magistrate is a member).
(5) A person referred to in paragraph (1)(c) performing a conferred
function, or exercising a conferred power, has the same protection and immunity
as he or she would have in performing functions and powers as part of the
person’s employment with a State or Territory court, as the case may
be.
This section applies regardless of when Commonwealth law
made
(6) This section applies whether the law conferring a function or power
was made before, on or after, the commencement of this section.
A law of the Commonwealth relating to criminal matters
(7) In this section, a reference to a law of the Commonwealth
relating to criminal matters includes a reference to this Act.
Governor-General may make arrangements
(1) The Governor-General may make arrangements with:
(a) the Governor of a State (excluding the Northern Territory);
and
(b) the Chief Minister for the Australian Capital Territory; and
(c) the Administrator of the Northern Territory; and
(d) the Administrator of Norfolk Island;
for the performance of functions, and the exercise of powers, that are
neither judicial nor incidental to a judicial function or power, conferred by a
law of the Commonwealth relating to criminal matters on:
(e) a State or Territory judge; or
(f) a magistrate; or
(g) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1: Magistrate is defined in
section 16C of the Acts Interpretation Act 1901.
Note 2: Justice of the Peace is defined in
paragraph 26(e) of the Acts Interpretation Act 1901.
Lack of arrangement does not affect validity of exercise of power or
performance of function
(2) The validity of the performance of a function, or the exercise of a
power, is not affected by the absence of an arrangement under this section
covering the performance of the function or exercise of the power.
This section applies regardless of when Commonwealth law
made
(3) This section applies to functions or powers conferred by laws made
before, on or after the commencement of this section.
A law of the Commonwealth relating to criminal matters
(4) In this section, a reference to a law of the Commonwealth
relating to criminal matters includes a reference to this Act.
3 Section 15FA
Repeal the section.
4 Part 1D (simplified
outline)
Repeal the simplified outline, substitute:
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
• suspects in relation to indictable offences (Divisions 3, 4
and 5); and
• offenders in relation to prescribed and serious offences
(Division 6A); and
• volunteers (Division 6B).
If the carrying out of a forensic procedure is authorised under this Part,
it must be carried out in accordance with rules and procedures set out in
Division 6.
If a forensic procedure covered by this Part is carried out without proper
authority under this Part, evidence obtained through the procedure may be
inadmissible in proceedings against the suspect (Division 7).
This Part also provides for:
• the establishing of a DNA database system (Division 8A);
and
• offences in relation to the DNA database system (Division 8A);
and
• the protection of information stored in the DNA database system
(Division 11); and
• the destruction of forensic material (Division 8A).
5 Subsection 23WA(1)
Insert:
AFP function means a function of the Australian Federal
Police set out in section 8 of the Australian Federal Police Act
1979.
6 Subsection 23WA(1) (definition of
authorised applicant)
authorised applicant for an order for the carrying out of a
forensic procedure means:
(a) if the procedure will be carried out on a suspect—the constable
in charge of a police station or the investigating constable in relation to a
relevant offence; or
(b) if the procedure will be carried out on an offender—the
constable in charge of a police station, the investigating constable in relation
to a relevant offence or the Director of Public Prosecutions.
7 Subsection 23WA(1)
Insert:
Commissioner means the Commissioner of the Australian Federal
Police and includes a constable or staff member to whom the Commissioner has
delegated the functions and powers conferred or imposed on the Commissioner
under this Act.
Note: See section 23YQ for the Commissioner’s
power to delegate.
8 Subsection 23WA(1)
Insert:
corresponding law is defined in section 23YUA.
9 Subsection 23WA(1)
Insert:
destroy is defined in subsection (5).
10 Subsection 23WA(1)
Insert:
DNA database system is defined in
section 23YDAC.
11 Subsection 23WA(1)
Insert:
exercise a function includes perform a duty.
12 Subsection 23WA(1) (at the end of
paragraph (c) of the definition of forensic
material)
Add “or video recordings”.
13 Subsection 23WA(1) (at the end of the
definition of forensic procedure)
Add “or the taking of any sample for the sole purpose of establishing
the identity of the person from whom the sample is taken”.
14 Subsection 23WA(1)
Insert:
function includes a power, authority or duty.
15 Subsection 23WA(1) (paragraph (a) of the
definition of incapable person)
After “effect of”, insert “, and purposes of carrying
out,”.
16 Subsection 23WA(1) (paragraphs (a), (e),
(f) and (h) of the definition of intimate forensic
procedure)
After “female”, insert “or a transgender person who
identifies as a female”.
17 Subsection 23WA(1) (paragraph (h) of the
definition of intimate forensic procedure)
After “photograph”, insert “or video
recording”.
18 Subsection 23WA(1) (definition of
investigating constable)
Omit “a relevant offence”, substitute “an offence in
relation to which a forensic procedure is carried out or proposed to be carried
out”.
19 Subsection 23WA(1)
Insert:
judge means a State or Territory judge.
20 Subsection 23WA(1)
Insert:
member of the opposite sex of a person is defined in
subsection (7).
21 Subsection 23WA(1)
Insert:
member of the same sex as a person is defined in
subsection (7).
22 Subsection 23WA(1) (paragraphs (a), (d),
(e) and (g) of the definition of non-intimate forensic
procedure)
After “female”, insert “or a transgender person who
identifies as a female”.
23 Subsection 23WA(1) (paragraph (g) of the
definition of non-intimate forensic procedure)
After “photograph”, insert “or video
recording”.
24 Subsection 23WA(1)
Insert:
offender means:
(a) a serious offender; or
(b) a prescribed offender.
24A Subsection 23WA(1) (definition of
order)
Repeal the definition, substitute:
order means:
(a) in relation to a suspect—an order of a magistrate under
section 23WS or interim order of a magistrate under section 23XA;
or
(b) in relation to an offender—an order of a judge or magistrate
under section 23XWO; or
(c) in relation to a volunteer—an order of a magistrate under
section 23XWU.
25 Subsection 23WA(1)
Insert:
participating jurisdiction is defined in
section 23YUA.
26 Subsection 23WA(1)
Insert:
prescribed offence means an offence under a law of the
Commonwealth punishable by a maximum penalty of imprisonment for life or 2 or
more years.
27 Subsection 23WA(1)
Insert:
prescribed offender means a person who is under sentence for
a prescribed offence.
Note: For the meaning of under sentence, see
subsection (8).
28 Subsection 23WA(1)
Insert:
prison medical officer means, in relation to a prison or
other place of detention, a person appointed or acting as medical officer for
the prison or other place of detention.
29 Subsection 23WA(1)
Insert:
recognised transgender person means a person the record of
whose sex is altered under Part 5A of the Births, Deaths and Marriages
Registration Act 1995 of New South Wales, or under the corresponding
provisions of a law of another Australian jurisdiction.
29A Subsection 23WA(1) (definition of
relevant offence)
Repeal the definition, substitute:
relevant offence means:
(a) in relation to a person who is a suspect:
(i) the indictable offence in relation to which the person is a suspect;
or
(ii) any other indictable offence arising out of the same circumstances;
or
(iii) any other indictable offence in respect of which the evidence likely
to be obtained as a result of a proposed forensic procedure carried out on the
suspect is likely to have probative value; or
(b) in relation to an offender—the offence for which the offender
was convicted and to which an application for an order authorising a forensic
procedure relates.
30 Subsection 23WA(1)
Insert:
responsible person, in relation to the DNA database system,
means the person responsible for the care, control and management of the
system.
31 Subsection 23WA(1)
Insert:
serious offence means an offence under a law of the
Commonwealth punishable by a maximum penalty of imprisonment for life or 5 or
more years.
32 Subsection 23WA(1)
Insert:
serious offender means a person who is under sentence for a
serious offence.
Note: For the meaning of under sentence, see
subsection (8).
33 Subsection 23WA(1) (definition of tape
recording)
Repeal the definition, substitute:
tape recording means audio recording, video recording or
recording by other electronic means.
34 Subsection 23WA(1)
Insert:
transgender person is defined in
subsection (6).
35 Subsection 23WA(1)
Insert:
volunteer is defined in section 23XWQ.
36 At the end of
section 23WA
Add:
Destroy forensic material or information
(5) For the purposes of this Part, a person destroys
forensic material taken from another person by a forensic procedure, the results
of the analysis of the material or other information gained from it if the
person destroys any means of identifying the forensic material or information
with the person from whom it was taken or to whom it relates.
Transgender persons
(6) In this Part, a reference to a person being transgender
or a transgender person is a reference to a person, whether or not
the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking
to live, as a member of the opposite sex; or
(b) who has identified as a member of the opposite sex by living as a
member of the opposite sex; or
(c) who, being of indeterminate sex, identifies as a member of a
particular sex by living as a member of that sex;
and includes a reference to the person being thought of as a transgender
person, whether the person is, or was, in fact a transgender person.
(7) In this Part (other than subsection (6)), a reference:
(a) to a member of the opposite sex of a person means, if
the person is a transgender person, a member of the opposite sex to the sex with
which the transgender person identifies; and
(b) to a member of the same sex as a person means, if the
person is a transgender person, a member of the same sex as the sex with which
the transgender person identifies.
(8) For the purposes of the definitions of prescribed
offender and serious offender, a person is under
sentence in relation to a prescribed offence or a serious offence if the
person:
(a) is serving a sentence in a prison (including a gaol, lock-up or other
place of detention); or
(b) is serving a sentence of a kind, or subject to an order of a kind,
provided for in subsection 20AB(1) as a sentence or order that may be passed or
made by a court, under that section, in respect of a person convicted of a
federal offence; or
(c) is released under a parole order made under subsection 19AL(1) or (2);
or
(d) is released on a licence granted under section 19AP; or
(e) being a child or young person, is serving a sentence of a kind, or
subject to an order of a kind, provided for in subsection 20C(1) as a sentence
or order that, under that section, may be imposed on the child or young person
who in a State or Territory is convicted of an offence against the law of the
Commonwealth; or
(f) is subject to an order made under Division 9 of Part 1B;
or
(g) is convicted and conditionally released as provided for in subsection
20(1), either:
(i) in the case of paragraph 20(1)(a)—without sentence being passed;
or
(ii) in the case of paragraph 20(1)(b)—after sentence has been
passed.
36A Section 23WB
After “suspect” (wherever occurring), insert “, offender
or volunteer”.
36B Subsection 23WB(4)
After “suspect’s”, insert “, offender’s or
volunteer’s”.
37 Division 2 of Part 1D
(heading)
Repeal the heading, substitute:
38 Division 3 of Part 1D
(heading)
Repeal the heading, substitute:
39 At the end of subsection
23WI(1)
Add:
; and (d) the person on whom the forensic procedure is proposed to be
carried out is not a child or an incapable person.
40 After paragraph
23WJ(1)(i)
Insert:
(ia) the effect of section 23XZ;
41 At the end of subsection
23WJ(1)
Add:
; (k) that information obtained from analysis of forensic material
obtained may be placed on the DNA database system and the rules that will apply
to its disclosure and use under this Part.
41A Subsection 23WJ(2)
Omit “the taking of a hand print, finger print, foot print or toe
print”, substitute “a non-intimate forensic
procedure”.
Note: The heading to subsection 23WJ(2) is altered by
omitting “most” and substituting
“intimate”.
42 Division 4 of Part 1D
(heading)
Repeal the heading, substitute:
43 Division 5 of Part 1D
(heading)
Repeal the heading, substitute:
44 Paragraph 23WT(3)(g)
Omit “reason”, substitute “reasons”.
45 Subsection 23WX(6)
Repeal the subsection, substitute:
(6) The suspect or his or her representative:
(a) may call or cross-examine the applicant for the order; and
(b) may, with the leave of the magistrate, call or cross-examine any other
witnesses; and
(c) may address the magistrate.
(6A) A magistrate must not give leave under paragraph (6)(b) unless
the magistrate is of the opinion that there are substantial reasons why, in the
interests of justice, the witness should be called or cross-examined.
46 Division 6 of Part 1D
(heading)
Repeal the heading, substitute:
47 Section 23XL
Repeal the section, substitute:
A person is authorised to take a sample of hair of a suspect by removing
the root of the hair only if:
(a) the person takes only so much hair as the person believes is necessary
for analysis of the sample, or other examination of the hair, to be carried out
for the purpose of investigating the offence; and
(b) each strand of hair is taken individually using the least painful
technique known and available to the person.
48 Subsections 23XM(1) and
(2)
Omit “(3)”, substitute “(4)”.
49 Subsection 23XM(3) (table item 8, column
2)
After “photograph”, insert “or a video
recording”.
50 Subsection 23XM(3) (table items 9, 10,
11, 12, 13 and 15, column 4)
Omit “yes (medical practitioner)”, substitute
“no”.
51 Subsection 23XM(3) (table item 14,
column 3)
Omit “constable”, substitute “appropriately qualified
person”.
52 Subsection 23XM(3) (table item 15,
column 2)
After “photograph”, insert “or a video
recording”.
53 After subsection 23XM(3) (before the
table)
Insert:
(4) This section does not prevent a suspect from taking a sample of
saliva, or a sample by buccal swab, from himself or herself under the
supervision of an appropriately qualified person.
54 At the end of
section 23XO
Add:
(3) A person who is asked to help carry out a forensic procedure may use
reasonable force to enable the forensic procedure to be carried out.
54A Subsection 23XP(1)
Omit “the taking of a hand print, finger print, foot print or toe
print”, substitute “a non-intimate forensic
procedure”.
Note: The heading to section 23XP is altered by
omitting “most” and substituting
“intimate”.
55 After section 23XW in Division 6 of
Part 1D
Insert:
A person is guilty of an offence if the person obstructs, hinders or
resists a person carrying out a forensic procedure in accordance with this
Part.
Penalty: Imprisonment for 2 years.
56 After Division 6 of
Part 1D
Insert:
Intimate forensic procedures to which Division applies
(1) This Division applies to the following intimate forensic
procedures:
(a) the taking of a sample of blood;
(b) the taking of a buccal swab.
Non-intimate forensic procedures to which Division applies
(2) This Division applies to the following non-intimate forensic
procedures:
(a) the taking of samples of hair other than pubic hair;
(b) the taking of fingerprints.
Application of Division
(3) A person is authorised by this section to carry out a forensic
procedure under this Division on a serious offender or a prescribed offender
whether convicted of the serious or prescribed offence concerned before or after
the commencement of this section.
(1) A person is authorised to carry out a non-intimate forensic procedure
to which this Division applies on a person (other than a child or an incapable
person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a constable under section 23XWK.
(2) A person is authorised to take the fingerprints of a prescribed
offender (other than a child or an incapable person):
(a) with the informed consent of the prescribed offender; or
(b) by order of a constable under section 23XWK.
(3) A person is authorised to carry out a non-intimate forensic procedure
to which this Division applies on a child or an incapable person who is a
serious offender, or to take the fingerprints of a child or incapable person who
is a prescribed offender, by order of a magistrate under
section 23XWO.
A person is authorised to carry out an intimate forensic procedure to
which this Division applies on a person (other than a child or incapable person)
who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a magistrate under section 23XWO.
(1) Division 6 applies to the carrying out under this Division of a
forensic procedure on an offender as if the references to the suspect in
Division 6 were references to the offender.
(2) A person is authorised by section 23XWC or 23XWD to carry out a
forensic procedure under this Division in accordance with Division 6 as
applied by this section and not otherwise.
(1) A person is not authorised to carry out a forensic procedure under
this Division on a serious offender or a prescribed offender if the serious
offender or prescribed offender is a suspect or a volunteer.
(2) A forensic procedure may be carried out on a serious offender or
prescribed offender who is a suspect only if authorised by and in accordance
with Divisions 2 to 5.
(3) A forensic procedure may be carried out on a serious offender or
prescribed offender who is a volunteer only if authorised by and in accordance
with Division 6B.
(1) An offender gives informed consent to a forensic procedure if the
offender consents after a constable:
(a) requests the offender to consent to the forensic procedure under
section 23XWH; and
(b) informs the offender about the forensic procedure in accordance with
section 23XWJ; and
(c) gives the offender the opportunity to communicate, or attempt to
communicate, with a legal practitioner of the offender’s choice.
(2) The constable must allow the offender to communicate, or attempt to
communicate, with the legal practitioner in private unless the constable
suspects on reasonable grounds that the offender might attempt to destroy or
contaminate any evidence that might be obtained by carrying out the forensic
procedure.
Note: Section 23YI states that the burden lies on the
prosecution to prove on the balance of probabilities that a constable had a
suspicion on reasonable grounds.
A constable may request:
(a) a serious offender (other than a child or an incapable person) to
consent to an intimate or non-intimate forensic procedure to which this Division
applies being carried out on the serious offender; or
(b) a prescribed offender (other than a child or an incapable person) to
consent to the taking of the offender’s fingerprints.
Before a request is made under section 23XWH, the constable must be
satisfied on the balance of probabilities that:
(a) in the case of a person on whom the procedure is proposed to be
carried out who is not serving a sentence of imprisonment in a prison or other
place of detention—that the person is an offender; and
(b) the request for consent to carry out the forensic procedure is
justified in all the circumstances.
(1) The constable must inform the offender of the following:
(a) the purpose for which the forensic procedure is required;
(b) if the constable 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 Division 6 as applied by
section 23XWE;
Note: See section 23XM.
(f) if the forensic procedure is the taking of a sample of blood, that the
offender may request that:
(i) if the offender is serving a sentence of imprisonment in a prison or
other place of detention—the prison medical officer be present while the
blood is taken; or
(ii) if the offender is not serving a sentence of imprisonment—a
medical practitioner of the offender’s choice 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 23XZ (if applicable);
(j) that information obtained from analysis of forensic material obtained
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 Division 8A.
Effect of failure to consent to non-intimate forensic
procedure
(2) The constable must inform a serious offender requested to undergo a
non-intimate forensic procedure to which this Division applies or a prescribed
offender requested to consent to the taking of his or her fingerprints that, if
the offender does not consent, a constable may order the carrying out of the
forensic procedure under section 23XWK if the constable has taken into
account the matters set out in section 23XWL.
Effect of failure to consent to intimate forensic
procedure
(3) The constable must inform a serious offender requested to undergo an
intimate forensic procedure to which this Division applies that, if the serious
offender does not consent, an application may be made to a magistrate for an
order authorising the carrying out of the forensic procedure.
A constable may order the carrying out of a non-intimate forensic
procedure to which this Division applies on a serious offender or the taking of
the fingerprints of a prescribed offender other than a child or an incapable
person if:
(a) the offender has been asked under section 23XWH to consent to the
carrying out of the forensic procedure; and
(b) the offender has not consented; and
(c) the constable has taken into account the matters set out in
section 23XWL.
In determining whether to make an order under section 23XWK, the
constable is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried
out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the offence committed
by the offender; and
(c) whether the carrying out of the forensic procedure could assist law
enforcement, whether Federal or otherwise; and
(d) whether the carrying out of the forensic procedure without consent is
justified in all the circumstances.
(1) The constable must, if practicable, ensure that the giving of the
information about the proposed forensic procedure and the offender’s
responses (if any) are tape recorded.
(2) If tape recording the giving of the information and the
offender’s responses (if any) is not practicable, the constable must
ensure that:
(a) a written record of the giving of the information and the
offender’s responses (if any) is made; and
(b) a copy of the record is made available to the serious
offender.
Note: Division 9 contains provisions about making
copies of material (including tapes) available to the serious
offender.
(1) The constable must, at the time of, or as soon as practicable after,
making an order under section 23XWK, make a record of:
(a) the order; and
(b) the date and time when the order was made; and
(c) the reasons for making it, and sign the record.
(2) The constable must ensure that a copy of the record is made available
to the offender as soon as practicable after the record is made.
(1) An authorised applicant may apply to any judge or magistrate for an
order directing a serious offender to consent to an intimate forensic procedure
to which this Division applies being carried out on the serious
offender.
(2) An authorised applicant may apply to any judge or magistrate for an
order for the carrying out of a non-intimate forensic procedure to which this
Division applies on a child or an incapable person who is a serious
offender.
(3) An application under subsection (1) or (2) must be accompanied by
an affidavit by the authorised applicant dealing with the matters referred to in
subsection (7).
(4) An authorised applicant may apply to any judge or magistrate for an
order for the taking of the fingerprints under this Division of a child or an
incapable person who is a prescribed offender.
(5) An authorised applicant may make an application under this section to
the judge or magistrate that is sentencing an offender or to any other judge or
magistrate at a later time.
(6) A judge or magistrate may order the carrying out of a forensic
procedure under this Division if satisfied that the carrying out of the forensic
procedure is justified in all the circumstances.
(7) In determining whether to make an order under this section, a judge or
magistrate is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried
out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the commission of the
offence by the offender; and
(c) whether the carrying out of the forensic procedure could assist law
enforcement, whether Federal or otherwise; and
(d) whether the carrying out of the forensic procedure is justified in all
the circumstances.
(8) An order under this section takes effect immediately. However, the
person who conducts any analysis of forensic material obtained as a result of
carrying out the forensic procedure on an offender must not disclose the results
of the analysis:
(a) until the expiration of any appeal period or after the final
determination of any appeal in relation to the offence concerned, whichever is
the later; or
(b) if the conviction is quashed.
(1) If:
(a) an offender is in prison or another place of detention; and
(b) a judge or magistrate orders the offender to permit a forensic
procedure to be carried out under this Division;
the judge or magistrate may order that a constable and a Division 6
person be permitted to attend on the offender in the prison or place of
detention to allow the forensic procedure to be carried out.
(2) In subsection (1), Division 6 person means a
person who, under Division 6 as applied by section 23XWE, may carry
out the forensic procedure.
(3) If a judge or magistrate orders an offender who is not in a prison or
another place of detention to permit a forensic procedure to be carried out, the
judge or magistrate may order the offender to attend at a police station (or
other place specified by the judge or magistrate) within a period specified by
the judge or magistrate to allow the forensic procedure to be carried
out.
(4) An offender ordered to permit the carrying out of a forensic procedure
is guilty of an offence if the offender, without reasonable excuse, refuses or
fails to permit the forensic procedure to be carried out.
Penalty: Imprisonment for 12 months.
Note: A defendant bears the evidential burden in relation to
the exception of reasonable excuse—see subsection 13.3(3) of the
Criminal Code.
(1) In this Part:
volunteer means a person:
(a) who volunteers to a constable to undergo a forensic procedure;
or
(b) in the case of a child or incapable person—whose parent or
guardian volunteers on the child or incapable person’s behalf to a
constable that the child or incapable person undergo a forensic
procedure.
(2) A person is authorised to carry out a forensic procedure:
(a) on a volunteer other than a child or an incapable person—with
the informed consent of the volunteer given in accordance with
section 23XWR; or
(b) on a volunteer who is a child or an incapable person:
(i) with the informed consent of the parent or guardian of the volunteer
given in accordance with section 23XWR or by order of a magistrate under
section 23XWU; and
(ii) after the person has informed the child or incapable person that,
even though consent has been given or an order made, if he or she objects to or
resists the carrying out of the forensic procedure it will not be carried
out.
(3) This section only authorises a person to carry out a forensic
procedure if the procedure is necessary, or incidental to, the carrying out of
an AFP function.
(4) This section does not authorise a person to carry out a forensic
procedure on a child or an incapable person who objects to or resists the
carrying out of the forensic procedure.
(5) Division 6 applies to the carrying out of a forensic procedure
under this Division as if the references to a suspect in that Division were
references to a volunteer referred to in this section. A person is authorised by
this section to carry out a forensic procedure on a volunteer in accordance with
Division 6 as so applied and not otherwise.
(1) A volunteer, or parent or guardian of a volunteer, gives informed
consent in accordance with this section if the volunteer, parent or guardian
consents in the presence of an independent person (not being a constable) after
a constable informs the volunteer, parent or guardian of the following
matters:
(a) the way in which the forensic procedure is to be carried
out;
(b) that the volunteer is under no obligation to undergo the forensic
procedure;
(c) that the forensic procedure may produce evidence that might be used in
a court of law;
(d) to the extent that they are relevant, the matters specified in
subsection (2);
(e) that the volunteer, parent or guardian may consult a legal
practitioner of the volunteer’s, parent’s or guardian’s choice
before deciding whether or not to consent to the forensic procedure;
(f) that the volunteer, parent or guardian may at any time withdraw
consent to:
(i) the volunteer undergoing the forensic procedure; or
(ii) retention of the forensic material taken; or
(iii) retention of information obtained from the analysis of that
material.
(2) The constable must inform the volunteer, or parent or guardian of the
volunteer, of the following:
(a) that information obtained from analysis of forensic material taken
from a person under this Division, and as to the identity of the person, may be
placed on the DNA database system;
(b) that the volunteer has a choice as to whether the information is
stored on the volunteers (limited purposes) index or the volunteers (unlimited
purposes) index of that system;
(ba) if the information is placed on the volunteers (limited purposes)
index—the purpose for which the information is placed on the index and
that the information may only be used for that purpose;
(c) if the information is placed on the volunteers (unlimited purposes)
index—that the information may be used for the purposes of a criminal
investigation or any other purpose for which the DNA database system may be used
under Division 8A;
(d) that information placed on the DNA database system will be retained
for such period as the Commissioner and the volunteer (or, in the case of a
volunteer who is a child or an incapable person, a parent or guardian of the
volunteer) agree and must then be removed from the system;
(e) any other matters prescribed by the regulations.
(1) The constable must, if practicable, ensure that the giving of the
information about the proposed forensic procedure and the volunteer’s or
volunteer’s parent’s or guardian’s responses (if any) are tape
recorded.
(2) If tape recording the giving of information and the volunteer’s,
parent’s or guardian’s responses (if any) is not practicable, the
constable must ensure that:
(a) a written record of the giving of the information and the
volunteer’s, parent’s or guardian’s responses (if any) is
made; and
(b) a copy of the record is made available to the volunteer, parent or
guardian.
(1) If a volunteer, or parent or guardian of the volunteer, expressly
withdraws consent to the carrying out of a forensic procedure under this
Division (or if the withdrawal of such consent can reasonably be inferred from
the volunteer’s, parent’s or guardian’s conduct) before or
during the carrying out of the forensic procedure:
(a) the forensic procedure is to be treated from the time of the
withdrawal as a forensic procedure for which consent has been refused;
and
(b) the forensic procedure is not to proceed except (in the case of a
child or incapable person) by order of a magistrate under
section 23XWU.
(2) If:
(a) a forensic procedure is carried out on a volunteer under this
Division; and
(b) after the procedure is carried out, the volunteer, or the parent or
guardian of the volunteer, expressly withdraws consent to retention of the
forensic material taken or of information obtained from the analysis of that
material;
then, subject to any order made under section 23XWV, the forensic
material and any information obtained from analysis of the material is to be
destroyed as soon as practicable after the consent is withdrawn.
(3) A constable may request, but cannot require, a parent or guardian who
withdraws consent to the carrying out of a forensic procedure under this
Division to confirm the withdrawal of consent in writing.
(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.
(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.
(1) An authorised applicant may apply to a magistrate for an order under
subsection (2).
(2) A magistrate may order that forensic material taken or information
obtained from carrying out a forensic procedure on a volunteer who withdraws
consent, or parent or guardian of a volunteer who withdraws consent, as
the case may be, to the retention of the material be retained if the magistrate
is satisfied that:
(a) during an investigation into the commission of a serious offence,
material reasonably believed to be from the body of a person who committed the
offence had been found:
(i) at the scene of the offence; or
(ii) on the victim of the offence or anything reasonably believed to have
been worn or carried by the victim when the offence was committed; or
(iii) on the volunteer or anything reasonably believed to have been worn
or carried by the volunteer at the scene of the offence or when the offence was
committed; or
(iv) on an object or person reasonably believed to have been associated
with the commission of the offence; and
(b) there are reasonable grounds to believe that information obtained from
analysis of the forensic material taken from the volunteer is likely to produce
evidence of probative value in relation to the serious offence being
investigated; and
(c) the retention of the forensic material taken from the volunteer is
justified in all the circumstances.
(3) The order may specify the period for which the forensic material taken
or information obtained from carrying out the procedure may be
retained.
57 Paragraph 23XX(1)(a)
Omit “suspect”, substitute “person”.
58 Paragraph 23XX(1)(b)
Repeal the paragraph, substitute:
(b) there has been a breach of, or failure to comply with:
(i) any provision of this Part in relation to a forensic procedure carried
out on the person (including, but not limited to, any breach or failure to
comply with a provision requiring things to be done at any time before or after
the forensic procedure is carried out); or
(ii) any provision of Division 8A with respect to recording or use of
information on the DNA database system.
58A Paragraph 23XX(3)(a)
Omit “suspect”, substitute “person”.
58B Subsection 23XX(4)
Omit “suspect” (wherever occurring), substitute
“person”.
58C Paragraph 23XX(5)(c)
Omit “suspect”, substitute “person”.
58D Paragraph 23XX(5)(g)
Omit “suspects”, substitute “persons”.
58E Sections 23XY and
23YA
Omit “suspect” (wherever occurring), substitute
“person”.
59 At the end of paragraph
23YC(a)
Omit “is destroyed”, substitute “obtained as a result of
the carrying out of the procedure is destroyed as soon as practicable after the
disallowance”.
60 At the end of
section 23YC
Add:
(2) If an order for the carrying out of a forensic procedure made under
section 23XWU or for the retention of forensic material under
section 23XWV specifies a period for which forensic material obtained as a
result of the carrying out of the procedure may be retained, the forensic
material is to be destroyed as soon as practicable after the end of the
period.
61 Subsection 23YD(1)
Omit “section 23YQ”, substitute “Divisions 6A
and 6B”.
62 At the end of subsection
23YD(2)
Add “unless a warrant for apprehension of the suspect has been
issued”.
63 Subsection 23YD(4)
Repeal the subsection, substitute:
(4) 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.
(5) A magistrate may, on application by a constable or the Director of
Public Prosecutions, extend for a period not exceeding 12 months the period for
which forensic material may be retained under this section, if the magistrate is
satisfied there are special reasons for doing so.
(6) A magistrate to whom an application is made under subsection (5)
is not to extend the period unless:
(a) the person from whom the forensic material was taken has been notified
by the applicant for the extension that the application has been made;
and
(b) the person or his or her legal representative or interview friend (if
any) has been given the opportunity to speak to or make a submission to the
magistrate concerning the extension.
(7) An extension in relation to particular forensic material may be given
on more than one occasion.
(8) The magistrate is to ensure that the responsible person in relation to
the DNA database system is notified of any extension given under this
section.
64 At the end of Division 8 of
Part 1D
Add:
The constable who obtained an authority under section 23XWG, 23XWK
or 23XWO for the carrying out of a forensic procedure on an offender whose
conviction is quashed after the making of the order must ensure that any
forensic material obtained as a result of the carrying out of the procedure is
destroyed as soon as practicable after the conviction is quashed.
If a magistrate finds that evidence described in subsection 23XX(3)
relating to a forensic procedure is inadmissible under section 23XX, the
Commissioner must, as soon as practicable, ensure that any forensic material
taken from the person by that forensic procedure is destroyed.
65 After Division 8 of
Part 1D
Insert:
In this Part:
crime scene index means an index of DNA profiles derived from
forensic material found:
(a) at any place (whether within or outside Australia) where an offence
(whether a prescribed offence or an offence under the law of a participating
jurisdiction) was, or is reasonably suspected of having been, committed;
or
(b) on or within the body of the victim, or a person reasonably suspected
of being a victim, of a prescribed offence; or
(c) on anything worn or carried by the victim at the time when a
prescribed offence was, or is reasonably suspected of having been, committed;
or
(d) on or within the body of any person, on any thing, or at any place,
associated with the commission of a prescribed offence.
DNA database system means a database (whether in computerised
or other form and however described) containing:
(a) the following indexes of DNA profiles:
(i) a crime scene index;
(ii) a missing persons index;
(iii) an unknown deceased persons index;
(iv) a serious offenders index;
(v) a volunteers (unlimited purposes) index;
(vi) a volunteers (limited purposes) index;
(vii) a suspects index;
and information that may be used to identify the person from whose
forensic material each DNA profile was derived; and
(b) a statistical index; and
(c) any other index prescribed by the regulations.
missing persons index means an index of DNA profiles derived
from forensic material of:
(a) persons who are missing; and
(b) volunteers who are relatives by blood of missing persons.
serious offenders index means an index of DNA profiles
derived from forensic material taken from:
(a) serious offenders in accordance with Division 6A, or under a
corresponding law of a participating jurisdiction; and
(b) suspects who have been convicted of a prescribed offence or an offence
under a corresponding law of a participating jurisdiction.
statistical index means an index of information
that:
(a) is obtained from the analysis of forensic material taken from persons
in accordance with this Part or under a corresponding law of a participating
jurisdiction; and
(b) has been compiled for statistical purposes; and
(c) cannot be used to discover the identity of persons from whom the
forensic material was taken.
suspects index means an index of DNA profiles derived from
forensic material taken from suspects in accordance with Division 3, 4 or 5
or under a corresponding law of a participating jurisdiction.
unknown deceased persons index means an index of DNA profiles
derived from forensic material of deceased persons whose identities are
unknown.
volunteers (limited purposes) index means an index of DNA
profiles derived from forensic material taken in accordance with
Division 6B or under a corresponding law of a participating
jurisdiction from volunteers who (or whose parents or guardians) have been
informed that information obtained will be used only for a purpose specified to
them under paragraph 23XWR(2)(b).
volunteers (unlimited purposes) index
means an index of DNA profiles derived from forensic material
taken:
(a) from volunteers who (or whose parents or guardians) have been informed
under paragraph 23XWR(2)(c) that information obtained may be used for the
purpose of a criminal investigation or any other purpose for which the DNA
database system may be used under this Division, in accordance with
Division 6B, or under a corresponding law of a participating jurisdiction;
and
(b) from deceased persons whose identity is known.
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct results in the forensic material taken from
any person, and which is required to be destroyed, under this Part or under a
corresponding law of a participating jurisdiction, to be supplied to another
person; and
(c) the person is reckless as to whether the forensic material is required
to be destroyed and the supply of the material to the other person;
and
(d) the person intends that the forensic material be analysed for the
purpose of deriving a DNA profile for inclusion on an index of the DNA database
system.
Penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) that conduct results in the supply of forensic material to any person
and the person is reckless as to that result; and
(c) the person is reckless as to whether the forensic material is not
excluded forensic material; and
(d) the person intends that the forensic material be analysed for the
purpose of deriving a DNA profile for inclusion on an index of the DNA database
system.
Penalty: Imprisonment for 2 years.
(3) In this section:
excluded forensic material means forensic material:
(a) found at a crime scene; or
(b) taken from a suspect in accordance with Division 3, 4 or 5 or
under a corresponding law of a participating jurisdiction; or
(c) taken from a serious offender or a volunteer in accordance with
Division 6A or 6B or under a corresponding law of a participating
jurisdiction; or
(d) taken from the body of a deceased person; or
(e) that is from the body of a missing person; or
(f) taken from a volunteer who is a relative by blood of a deceased or
missing person.
(1) A person is guilty of an offence if the person accesses information
stored on the DNA database system otherwise than in accordance with this
section.
Penalty: Imprisonment for 2 years.
(2) A person may access information stored on the DNA database system for
one or more of the following purposes:
(a) the purpose of forensic comparison permitted under section 23YDAF
(permissible matching);
(b) the purpose of making the information available, in accordance with
the regulations, to the person to whom the information relates;
(c) the purpose of administering the DNA database system;
(d) the purpose of any arrangement entered into between the Commonwealth
and a State or Territory for the provision of access to information contained in
the DNA database system by law enforcement officers or by any other persons
prescribed by the regulations;
(e) the purpose of and in accordance with the Mutual Assistance in
Criminal Matters Act 1987 or the Extradition Act 1988;
(f) the purpose of a coronial inquest or inquiry;
(g) the purpose of an investigation of a complaint by the Privacy
Commissioner of the Commonwealth or of a participating jurisdiction.
(3) This section does not apply to information that cannot be used to
discover the identity of any person.
(1) A matching of a DNA profile on an index of the DNA database system
specified in column 1 of the following table with a DNA profile on another index
of the system specified in column 2, 3, 4, 5, 6, 7 or 8 of the table is not
permitted by this Part if:
(a) “no” is shown in relation to the index specified in column
2, 3, 4, 5, 6, 7 or 8 opposite the index specified in column 1; or
(b) “only if within purpose” is shown in relation to the index
specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited
purposes) index specified in column 1 and the matching is carried out for a
purpose other than a purpose for which the DNA profile placed on the volunteers
(limited purposes) index specified in column 1 was so placed.
|
Profile to be matched |
Is matching permitted? |
||||||
|---|---|---|---|---|---|---|---|
|
Column 1 |
Column 2 |
Column
3 |
Column 4 |
Column 5 |
Column 6 |
Column 7 |
Column 8 |
|
1. crime scene |
yes |
yes |
no |
yes |
yes |
yes |
yes |
|
2. suspects |
yes |
no |
no |
no |
yes |
no |
yes |
|
3. volunteers (limited purposes) |
only if within purpose |
no |
no |
no |
only if within purpose |
only if within purpose |
only if within purpose |
|
4. volunteers (unlimited purposes) |
yes |
no |
no |
no |
yes |
yes |
yes |
|
5. serious offenders |
yes |
yes |
no |
no |
yes |
yes |
yes |
|
6. missing persons |
yes |
yes |
yes |
yes |
yes |
yes |
yes |
|
7. unknown deceased persons |
yes |
yes |
yes |
yes |
yes |
yes |
no |
(2) A person is guilty of an offence if:
(a) the person’s conduct causes the matching that is not permitted
by this Part of a DNA profile on an index of the DNA database system with a DNA
profile on the same or another index of the DNA database system; and
(b) the person is reckless as to any such matching of profiles.
Penalty: Imprisonment for 2 years.
(3) This section does not make it an offence for conduct to cause a
matching that is not permitted by this Part if the matching is solely for the
purposes of administering the DNA database system.
Note: A defendant bears the evidential burden in relation to
the matter in subsection (3)—see subsection 13.3(3) of the
Criminal Code.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes any identifying information about a
person obtained from forensic material taken from the person under this Part to
be recorded or retained in a DNA database system at any time after this Part
requires the forensic material to be destroyed; and
(b) the person is reckless as to the recording or retention or whether the
forensic material is required to be destroyed.
Penalty: Imprisonment for 2 years.
(2) The responsible person is guilty of an offence if he or she does not
ensure that any identifying information, relating to a person from whose
forensic material a DNA profile on the volunteers (unlimited purposes) index or
volunteers (limited purposes) index of the DNA database system was derived, is
removed from the system as soon as practicable after the end of the identifying
period for the profile.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible
person.
(3) The responsible person is guilty of an offence if he or she does not
ensure that any identifying information relating to a DNA profile of an offender
on the serious offenders index of the DNA database system is removed from the
system as soon as practicable after becoming aware that the offender has been
pardoned or acquitted of the offence concerned or if the conviction has been
quashed.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible
person.
(4) In this section:
identifying information means any information that could be
used:
(a) to discover the identity of the person from whose forensic material
the DNA profile was derived; or
(b) to get information about an identifiable person.
identifying period for a DNA profile means the
following:
(a) except as provided by paragraphs (b) and (c), the period of 12
months after the DNA profile is placed on the DNA database system;
(b) if the DNA profile is derived from forensic material taken from a
volunteer—such period after the DNA profile is placed on the DNA database
system as is agreed by the Commissioner and the volunteer (or, in the case of a
volunteer who is a child or an incapable person, a parent or guardian of the
volunteer);
(c) if the DNA profile is derived from forensic material taken from a
deceased person (not being a person who was a volunteer) whose identity is
known—such period as the Commissioner orders the responsible person to
retain identifying information relating to the profile.
66 Subsection 23YE(1)
After “suspect” (wherever occurring), insert “or
offender”.
67 Subsection 23YE(1)
After “suspect’s” (twice occurring), insert “or
offender’s”.
68 Paragraphs 23YE(2)(a) and
(b)
After “suspect”, insert “or offender”.
69 After paragraph
23YE(2)(b)
Insert:
; and (c) the suspect or offender is so informed in a language (including
in sign language or braille) in which the suspect’s or offender’s
interview friend or legal representative is not able to communicate with
reasonable fluency;
70 Subsection 23YE(2)
Omit all the words from “the interview” up to and including
“matter”, substitute “the interview friend or legal
representative must also be informed of the matter in a language in which the
interview friend or legal representative is able to communicate with reasonable
fluency”.
71 Section 23YF
After “suspect” (wherever occurring), insert “, offender
or volunteer”.
72 Paragraph 23YF(2)(a)
After “suspect’s”, insert “, offender’s or
volunteer’s”.
73 Section 23YG
After “suspect” (wherever occurring), insert “, offender
or volunteer”.
74 Paragraph 23YG(1)(a)
After “suspect’s”, insert “, offender’s or
volunteer’s”.
75 Subsection 23YG(2)
Omit “ subsection (1) within 7 days after the material comes
into existence”, substitute:
subsection (1):
(a) within 7 days after the material comes into existence; or
(b) if the material is requested by the suspect, offender or volunteer or
the suspect’s, offender’s or volunteer’s interview friend or
legal representative, within 7 days of the request.
75A Subsection 23YG(2)
(note)
Omit “section 23XV”, substitute
“section 23XU”.
76 Section 23YH
After “suspect” (twice occurring), insert “, offender or
volunteer”.
Note: The heading to section 23YH is altered by adding
at the end “, offenders and volunteers”.
77 At the end of Division 9 of
Part 1D
Add:
(1) A tape recording made by a constable in accordance with this Part that
is no longer required for investigative or evidentiary purposes may be retained
for such other purposes, and for such period, as the Commissioner
directs.
(2) A recording that is retained under this section is to be stored so as
to protect it against unauthorised access or use by any person.
(1) A person is guilty of an offence if:
(a) the person has access to any information stored on the DNA database
system or to any other information revealed by a forensic procedure carried out
on a suspect, offender or volunteer; and
(b) the person’s conduct causes the disclosure of information other
than as provided by this section; and
(c) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(2) A person may only disclose information stored on the DNA database
system for one or more of the following purposes:
(a) the purposes of forensic comparison in the course of a criminal
investigation by a constable or other person prescribed by the
regulations;
(b) the purposes of making the information available, in accordance with
the regulations, to the person to whom the information relates;
(c) the purposes of administering the DNA database system;
(d) the purposes of any arrangement entered into between the Commonwealth
and a State or Territory for the provision of access to information contained in
the DNA database system by law enforcement officers or by any other persons
prescribed by the regulations;
(e) the purposes of, and in accordance with, the Mutual Assistance in
Criminal Matters Act 1987 or the Extradition Act 1988;
(f) the purpose of a coronial inquest or inquiry;
(g) the purposes of an investigation by the Privacy Commissioner or the
Ombudsman of the Commonwealth or of a participating jurisdiction.
(3) A person may only disclose information revealed by the carrying out of
a forensic procedure as follows:
(a) if the person is the suspect, offender or volunteer to whom the
information relates;
(b) if the information is already publicly available;
(c) in accordance with any other provision of this Part;
(d) in accordance with the Mutual Assistance in Criminal Matters Act
1987 or the Extradition Act 1988;
(e) for the purposes of the investigation of any offence or offences
generally;
(f) for the purpose of a decision whether to institute proceedings for any
offence;
(g) for the purpose of proceedings for any offence;
(h) for the purpose of a coronial inquest or inquiry;
(i) for the purpose of civil proceedings (including disciplinary
proceedings) that relate to the way in which the procedure is carried
out;
(j) for the purposes of the suspect’s, offender’s or
volunteer’s medical treatment;
(k) for the purpose of the medical treatment of the victim of an offence
that there are reasonable grounds to believe was committed by the
suspect;
(l) if the suspect, offender or volunteer consents in writing to the
disclosure.
(4) This section does not apply to information that cannot be used to
discover the identity of any person.
Taking, retention and use authorised by laws of other
jurisdictions
(1) Nothing in this Part affects the taking, retention or use of forensic
material, or information obtained from forensic material, if the taking,
retention or use of the material is authorised by or under a law of a State or a
Territory.
(2) Forensic material, or information obtained from it, that was taken in
accordance with a law of a State or a Territory may be retained or used for
investigative, evidentiary or statistical purposes of the Commonwealth. The
material or information may be retained or used even if its retention or use
would, but for this subsection, constitute a breach of, or failure to comply
with, any provision of this Part relating to the carrying out of forensic
procedures.
Use and retention of forensic material taken before commencement of
subsection
(3) Forensic material, or information obtained from it, that is taken in
accordance with a law of a State or a Territory, as in force immediately before
the commencement of this subsection, may be retained or used for investigative,
evidentiary or statistical purposes of the Commonwealth. The material or
information may be retained or used even if its retention or use would, but for
this subsection, constitute a breach of, or failure to comply with, any
provision of this Part relating to the carrying out of forensic
procedures.
(1) The Commissioner of the Australian Federal Police may delegate all or
any of his or her functions and powers under this Part to a constable or staff
member.
(2) In subsection (1), staff member has the meaning it
has in the Australian Federal Police Act 1979.
78 Divisions 10 and 11 of
Part 1D
Repeal the Divisions.
79 Division 12 of
Part 1D
Renumber as Division 10 of Part 1D.
80 After paragraph
23YU(1)(a)
Insert:
(aa) without limiting paragraph (a), the carrying out of breath
analysis or a breath test or the production of samples of blood and urine to
determine the level of alcohol or drugs, if any, present in a person’s
body; or
81 After Division 10 of
Part 1D
Insert:
In this Part:
appropriate authority means:
(a) in relation to a participating jurisdiction other than the Australian
Capital Territory—an authority exercising, in relation to the police force
of that jurisdiction, functions corresponding to those of the Commissioner and
any other authority prescribed by the regulations; or
(b) in relation to the Australian Capital Territory—the Commissioner
and any other authority prescribed by the regulations.
corresponding law means a law relating to the carrying out of
forensic procedures and DNA databases that substantially corresponds to this
Part or is prescribed by the regulations for the purposes of this
definition.
DNA database means:
(a) in relation to the Commonwealth—the DNA database system;
and
(b) in relation to a participating jurisdiction—a DNA database
system that is kept under a corresponding law of the participating
jurisdiction.
participating jurisdiction means a State or Territory in
which there is a corresponding law in force.
responsible Minister of a participating jurisdiction means a
Minister of that jurisdiction who is responsible for administration of a
corresponding law.
(1) The Minister may enter into arrangements with the responsible
Ministers of the participating jurisdictions for the establishment and
maintenance, in one or more of those jurisdictions, of a register of orders for
the carrying out of forensic procedures made under this Part or
corresponding laws of participating jurisdictions.
(2) An order is registered when a copy of the order (being a copy
certified by the person who made it) is registered in accordance with the law of
the participating jurisdiction in which the register is kept.
(3) An application for registration of an order, or for cancellation of
registration of an order, may be made by an appropriate authority.
(1) A person is authorised to carry out the forensic procedure authorised
by an order that is registered in accordance with an arrangement referred to in
subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to
carry out the procedure in accordance with Division 6 and not
otherwise.
(2) A constable, or other person assisting a constable in accordance with
this Part or a corresponding law of a participating jurisdiction, is not
compelled by this Part, or an arrangement referred to in subsection 23YUB(1), to
execute an order registered under such an arrangement.
(1) The Minister may enter into arrangements with a responsible Minister
of a participating jurisdiction under which:
(a) information from the DNA database system of the Commonwealth that may
be relevant to the investigation of an offence against the law of the
participating jurisdiction is to be transmitted to the appropriate authority in
that jurisdiction for the purpose of the investigation of, or proceedings in
respect of, that offence; and
(b) information from a DNA database system of the participating
jurisdiction that may be relevant to the investigation of an offence against the
law of the Commonwealth is to be transmitted to the Commissioner for the
purposes of the investigation of, or proceedings in respect of, that
offence.
(2) Information that is transmitted under this section must not be
recorded, or maintained in any database of information that may be used to
discover the identity of a person or to obtain information about an identifiable
person at any time after this Part or a corresponding law of a participating
jurisdiction requires the forensic material to which it relates to be
destroyed.
81A Section 23YT
Repeal the section.
82 Division 13 of
Part 1D
Renumber as Division 12 of Part 1D.
83 After paragraph
23YV(1)(b)
Insert:
(ba) the effectiveness of independent oversight and accountability
mechanisms for the DNA database system; and
(bb) any disparities between the legislative and regulatory regimes of the
Commonwealth and participating jurisdictions for the collection and use of DNA
evidence; and
(bc) any issues relating to privacy or civil liberties arising from
forensic procedures permitted by this part; and
84 Subsection 23YV(1)
Omit “second anniversary of the commencement of this Act,”,
substitute “first anniversary of the commencement of Schedule 1 to
the Crimes Amendment (Forensic Procedures) Act 2001 referred to in
subsection 2(2) of that Act”.
85 Subsection 23YV(4) (paragraph (b) of the
definition of independent review)
Omit “and a nominee of the Ombudsman”, substitute “, a
nominee of the Ombudsman and a nominee of the Privacy
Commissioner”.
86 At the end of
section 23YV
Add:
(5) If a written report tabled under subsection (3) identifies
inadequacies in respect of the matters referred to in
subsection (1):
(a) the Minister must cause a further independent review to be undertaken
within 2 years of the tabling of that report to ascertain whether the
inadequacies have been effectively dealt with; and
(b) subsections (2), (3) and (4) apply in relation to the report of
that further review in the same manner as they apply in respect of the report of
the original review.
1 Subsection 3(1) (definition of foreign
restraining order)
Repeal the definition, substitute:
foreign restraining order means an order:
(a) made under the law of a foreign country in respect of an offence
against the law of that country; and
(b) which is, or purports to be, made for the purpose of preserving
property (whether or not the order also purports to do other things) including
an order:
(i) restraining a particular person or persons from dealing with the
property; or
(ii) freezing the property; or
(iii) directing the seizure of the property; or
(iv) directing that the property be taken into official custody or
control.
2 Subsection 34(7)
Omit “a restraining order”, substitute “an
order”.
3 At the end of subsection
34(7)
Add “that directed that the property specified in the order is not to
be disposed of, or otherwise dealt with, by any person”.