Criminal Law (Forensic Procedures) Regulations 2022

These regulations may be cited as the Criminal

Law (Forensic Procedures) Regulations 2022.

In these regulations—

Act means the Criminal

Law (Forensic Procedures) Act 2007.

The following laws, as in force from time to time, are prescribed for the purposes of the definition of corresponding law in section 3(1) of the Act:

the

Crimes (Forensic Procedures) Act 2000 of the Australian Capital Territory;

Part ID of the Crimes

Act 1914 of the Commonwealth;

the

Crimes (Forensic Procedures) Act 2000 of New South Wales;

Part VII

Division 7 of the Police

Administration Act 1978 of the Northern Territory;

Part 2

Division 3 of the Youth

Justice Act 2005 of the Northern Territory;

Chapter 17 of the Police

Powers and Responsibilities Act 2000 of Queensland;

the

Forensic

Procedures Act 2000 of Tasmania;

Part III

Division 1 Subdivision 30A of the Crimes

Act 1958 of Victoria;

the

Criminal

Investigation (Identifying People) Act 2002 of Western Australia.

If a forensic procedure consisting of the taking of a sample of blood is to be carried out on a person pursuant to section 20B of the

Act, the authorising officer must, before the procedure is carried out—

give the person written notice that—

a sample of the person's blood is to be taken pursuant to section 20B of the Act; and

the blood will be tested for communicable diseases; and

if the person is under the age of 16 years—take reasonable steps to give to the person's parent or guardian written notice of the matters set out in paragraph (a);

and

invite the person (or, if the person is under the age of 16 years, the person's parent or guardian) to nominate a medical practitioner to receive a copy of the results of the testing.

A failure to comply with a requirement of subregulation (1) in respect of a forensic procedure does not invalidate the forensic procedure or otherwise affect the authority to perform the forensic procedure and any testing on the material obtained from it.

If a forensic procedure is carried out on a person pursuant to section 20B of the Act, the Commissioner of Police must take reasonable steps to notify the following persons of the results of testing for communicable diseases undertaken on the material obtained from the forensic procedure:

the person on whom the forensic procedure was carried out;

if the person is under the age of 16 years at the time the forensic procedure is carried out—the person's parent or guardian.

The

Commissioner of Police is taken to have complied with the requirement of subregulation (1) to notify a person or the person's parent or guardian of the results of testing on provision of the results to a medical practitioner nominated by the person or the person's parent or guardian.

The

Commissioner of Police must take reasonable steps to notify the following persons of the results of testing for communicable diseases undertaken on material obtained from a forensic procedure carried out pursuant to section 20B of the Act:

each affected person;

if the affected person is under the age of 16 years—the affected person's parent or guardian.

The

Commissioner of Police is taken to have complied with the requirement of subregulation (1) to notify a person or the person's parent or guardian of the results of testing on provision of the results to a medical practitioner nominated by the person or the person's parent or guardian.

In this regulation—

affected person in relation to a forensic procedure, means a person engaged in prescribed employment referred to in section 20B(1)(b) of the

Act who likely came into contact with, or was otherwise exposed to, biological material of the person on whom the forensic procedure is carried out.

For the purposes of section 24(1)(b) and 55(5) of the Act—

a person who is a registered nurse or a midwife is qualified to carry out a forensic procedure of any type except the taking of a dental impression; and

a police officer or a person authorised by the Commissioner of Police is qualified to carry out a forensic procedure (other than an intrusive forensic procedure) consisting of—

the taking of prints of the hands, fingers, feet or toes; or

an examination of a part of a person's body; and

a person who has satisfactorily completed a course of training approved for the purpose by the Minister is qualified to carry out a forensic procedure (other than an intrusive forensic procedure) consisting of 1 or more of the following:

the taking of a sample of hair from a person's body;

the taking of a sample of fingernail or toenail, or material from under a fingernail or toenail;

the taking of a sample of biological or other material from an external

part of the body;

the taking of a sample by buccal swab;

the taking of a sample of blood by finger‑prick for the purpose of obtaining a DNA profile;

the taking of an impression or cast of a wound.

A forensic procedure consisting of the taking of a sample of blood by finger‑prick for the purpose of obtaining a DNA profile should only be carried out by a person in accordance with subregulation (1)(c)(v) if it is not appropriate, in the circumstances, to take a sample by buccal swab for the purpose of obtaining the DNA profile.

For the purposes of section 50(1)(p) of the Act, a purpose connected to the administration of Part 2 Division 4 of the Act is prescribed.

For the purposes of section 50A(1) of the Act, a person for the time being performing the duties, or holding or acting in the position, of Director of Forensic Science SA is a prescribed authority.

The

Minister will maintain a register of orders for the purposes of section 56(2) of the Act (the Register).

The

Register—

may be kept in electronic form; and

must contain the following particulars in relation to each order:

the date on which and place at which the order was made;

the name of the court or authority that made the order;

the name of the person against whom the order was made;

the terms of the order.

If the Minister has entered into an arrangement with the Minister responsible for the administration of a corresponding law in accordance with section 56(2) of the Act, the Minister will, at the request of the Minister responsible for the administration of the corresponding law, register an order made under the corresponding law in the Register.

In any proceedings an apparently genuine document purporting to be a certified copy of, or extract from, the Register will be accepted, in the absence of proof to the contrary, as proof of the matters specified in the copy or extract.