Crimes Act 1900

A police officer may take identification material from a person who is under 18 years old and not in police custody for an offence, or under 16 years old and in police custody for an offence, only if a magistrate orders that the material may be taken from the person.

A police officer may take identification material from a person who is at least 16 years old but under 18 years old, and in police custody for an offence, only if—

the officer is an officer of or above the rank of sergeant, or is the officer in charge of a police station at which the person is in custody; and

the offence was allegedly committed by the person at a time when the person was at least 16 years old; and

either—

the officer believes on reasonable grounds that taking the material is necessary to identify the person, or identify the person as having committed the offence for which the person is in police custody; or

the officer suspects on reasonable grounds that the person has committed another offence and that the material is likely to identify the person as having committed the other offence; and

either—

the person is not in an impaired state; or

if the person is in an impaired state—a magistrate orders that the material may be taken from the person.

Before taking identification material from a person who is not in an impaired state, a police officer must tell the person—

that the information is about to be taken from the person in accordance with this section; and

if the material is being taken for the purpose of identifying the person—that the material is being taken to identify the person; and

if the material is being taken for the purpose of identifying the person as having committed an offence—

the offence allegedly committed by the person; and

that the identification material may be used in evidence in proceedings in relation to the offence; and

if subsection (1) applies—whether a magistrate has ordered that the material may be taken.

A police officer (the applicant) may apply to a magistrate for an order allowing identification material to be taken from a person under 18 years old if any of the following apply (the grounds for the application):

if the person is in police custody—

the applicant believes on reasonable grounds that taking the material is necessary to identify the person, or identify the person as having committed the offence for which the person is in police custody; or

the applicant suspects on reasonable grounds that the person has committed another offence and that the material is likely to identify the person as having committed the other offence;

if the person is not in police custody—

the applicant believes on reasonable grounds that taking the material is necessary to identify the person; or

the applicant suspects on reasonable grounds that taking the material is necessary to identify the person as having committed a stated offence.

The application must be made—

in person; or

if it is not practicable for the applicant to make the application in person—by telephone, fax, email or any other means of communication.

The application must—

be in writing; and

be sworn on oath; and

Oath includes affirmation and swear an oath includes make an affirmation (see Legislation Act, dict, pt 1).

state—

the name, age and home address of the person from whom identification material would be taken (if known); and

the material that would be taken; and

the facts in support of the application; and

the grounds for the application; and

if the person is in an impaired state—the nature of the person’s impairment; and

any other information requested by the magistrate; and

include any other information prescribed by regulation.

A magistrate must not make an order allowing identification material to be taken from a person under this section unless the magistrate is satisfied that the information is reasonably necessary to identify the person, or identify the person as having committed the offence for which the person is in custody, the other offence or the stated offence.

Before giving an explanation mentioned in subsection (3) to a person, or taking identification material from a person in accordance with this section, a police officer involved with giving the explanation or taking the material must—

allow someone with parental responsibility for the person to be present when the explanation is given or the material is taken if—

it is practicable for a person with parental responsibility to be present; and

the person does not object to the person with parental responsibility being present; or

if it is not practicable for, or the person objects to, someone with parental responsibility for the person being present when the explanation is given or the material is taken—

allow an interview friend for the person to be present when the explanation is given or the material is taken; and

as soon as practicable after the explanation is given or the material is taken, take reasonable steps to tell someone with parental responsibility for the person about the action taken.

A police officer may use force that is necessary and reasonable in the circumstances to take identification material from a person under this section.

If a police officer is required to use force to take identification material from a person under this section (the forceful taking), the police officer must ensure that the forceful taking is recorded by a video recording.

In this section: