Forensic Procedures Act 2000

Forensic Procedures Act 2000

This Act may be cited as the Forensic Procedures Act 2000.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – amend includes the following:omit matter; insert matter; omit matter and substitute new matter; appropriate authority means – in relation to a participating jurisdiction other than the Australian Capital Territory – an authority performing and exercising, in relation to the police force of that jurisdiction, functions and powers corresponding to those of the Commissioner of Police; and any other authority prescribed by the regulations; and in relation to the Australian Capital Territory – the Commissioner of the Australian Federal Police; and any other authority prescribed by the regulations; authorised person, in respect of a forensic procedure, means a person authorised to carry out that forensic procedure under section 40; charged person means a person who has been arrested and charged with a serious offence; convicted includes – found guilty, whether or not a conviction is recorded; and found not guilty by reason of insanity; corresponding law means a law that – substantially corresponds to this Act; or is prescribed by the regulations for the purposes of this definition; crime scene means – a place where a serious offence was, or is reasonably suspected of having been, committed; and a place or thing reasonably suspected of being associated with the commission of a serious offence; crime scene index means an index of DNA profiles derived from forensic material found – at any place (whether within or outside Australia) where a serious offence was, or is reasonably suspected of having been, committed; or on or within the body of the victim, or a person reasonably suspected of being a victim, of a serious offence; or on anything worn or carried by the victim, or a person reasonably suspected of being a victim, at the time when a serious offence was, or is reasonably suspected of having been, committed; or on or within the body of any person, on any thing, or at any place, reasonably suspected of being associated with the commission of a serious offence; dentist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; destroy has the meaning given by subsection (4); DNA database system means an electronic database containing – the following indexes of DNA profiles:a crime scene index; a missing persons index; an unknown deceased persons index; a serious offenders index; a volunteers (unlimited purposes) index; a volunteers (limited purposes) index; a suspects index – and information that may be used to identify the person from whose forensic material each DNA profile was derived; and a statistical index; and any other index prescribed by the regulations; forensic material means – samples; and handprints, fingerprints, footprints and toeprints; and photographs and video recordings; and casts or impressions – taken from or of a person's body; forensic procedure means – an intimate forensic procedure; and a non-intimate forensic procedure; forensic procedure application means an application to a magistrate under section 14 for a forensic procedure order; forensic procedure order means an order made by a magistrate under section 17 authorising the carrying out of a forensic procedure; function includes duty; in custody means – under lawful arrest by warrant; and under lawful arrest under section 27 of the Criminal Code; and otherwise in the lawful custody of a police officer under this or any other Act; and on remand; informed consent in relation to – a suspect, charged person or the parent of a suspect or charged person, has the meaning given by section 8(4); and a parent of a young child, has the meaning given by section 34D(2); and a volunteer or a volunteer's parent, has the meaning given by section 29(3); interim forensic procedure order means an interim forensic procedure order made under section 19; intimate forensic procedure means – an external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts; and an internal examination of a body cavity other than the mouth; and the taking of a sample of pubic hair; and the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by swab or washing from a body cavity other than the mouth; and the taking of an X-ray of a part of the body; and the taking of a dental impression; and the taking of a photograph of, or an impression or cast from, the external genital or anal area, the buttocks or, in the case of a female, the breasts; and any other procedure prescribed by the regulations as an intimate forensic procedure; member of the Police Service means – a person who holds the rank of Trainee or Junior Constable specified in section 4(2) of the Police Service Act 2003; or an ancillary constable within the meaning of the Police Service Act 2003; missing persons index means an index of DNA profiles derived from forensic material of – persons who are missing; and volunteers who are relatives by blood of missing persons; non-intimate forensic procedure means – the taking of a sample of blood; and the taking of a sample of saliva; and the taking of a sample by buccal swab; and an external examination of a part of the body, other than the external genital or anal area, the buttocks or, in the case of a female, the breasts, that requires the touching of the body or the removal of clothing; and an internal examination of the mouth; and the taking of a sample of hair other than pubic hair; and the taking of a sample from a nail or under a nail; and the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of a handprint, fingerprint, footprint or toeprint; and the taking of a photograph of a person or an external part of a person other than the external genital or anal area, the buttocks or, in the case of a female, the breasts; and the taking of an impression or cast from a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and any other procedure prescribed by the regulations as a non-intimate forensic procedure – but does not include an intrusion into any body cavity of a person other than the mouth; nurse means a registered nurse; Officer of Police means a commissioned police officer; parent means – a person who has parental responsibility for a child or for a young child; and a guardian of a child or of a young child; and a foster parent of a child or of a young child; parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children; part of the body includes a prosthesis; participating jurisdiction means the Commonwealth, a State or a Territory if there is a corresponding law in force in that jurisdiction; prescribed offender means – a person who has been convicted of a serious offence and – is serving a sentence of imprisonment or detention in a prison; or after serving part of such a sentence in a prison is on release on parole under the Corrections Act 1997; and a person who is subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999; prison means – a prison within the meaning of the Corrections Act 1997; and a detention centre within the meaning of the Youth Justice Act 1997; regulations means regulations made and in force under section 65; responsible Minister, in relation to a participating jurisdiction, means a Minister of that jurisdiction who is responsible for the administration of a corresponding law; responsible person, in relation to a DNA database system, means the person nominated by the Commissioner of Police to be responsible for the care, control and management of the system; sampling procedure, in relation to a young child, means – the taking of a sample of saliva from the young child; and the taking of a sample from the young child by buccal swab; serious offence means an offence – under the law of this State or of a participating jurisdiction that is punishable on indictment even though in some instances it may be dealt with summarily; or against section 8, 9 or 10 of the Animal Welfare Act 1993; or against section 13A, 13B, 13C, 21, 21A, 34B, 35, 37, 37AA(1), 37B, 38B or 39 of the Police Offences Act 1935; or against section 9(1), 74(1), 107A(1), 111(1), 112, 113(2) or 114(1) of the Firearms Act 1996; or against section 20, 21, 22A, 26, 27 or 27AA of the Misuse of Drugs Act 2001; or against section 11A(1) or (2A) of the Police Powers (Vehicle Interception) Act 2000; serious offender means a person who has been convicted of a serious offence; serious offenders index means an index of DNA profiles derived from forensic material taken – from prescribed offenders in accordance with Part 3 or under a corresponding law of a participating jurisdiction; and from suspects and charged persons who have been convicted of a serious offence; statistical index means an index of information that – is obtained from the analysis of forensic material taken from persons in accordance with this Act or under a corresponding law of a participating jurisdiction; and has been compiled for statistical purposes; and cannot be used to discover the identity of persons from whom the forensic material was taken; suspect means a person whom a police officer suspects on reasonable grounds has committed a serious offence but who has not been arrested and charged with the serious offence; suspects index means an index of DNA profiles derived from forensic material taken in accordance with Part 2 or under a corresponding law of a participating jurisdiction from suspects and charged persons; unknown deceased persons index means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown; volunteer means a person who volunteers to a police officer to undergo a forensic procedure; volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken in accordance with Part 4 or under a corresponding law of a participating jurisdiction from volunteers who have been informed that information obtained will be used only for a purpose specified to them under section 30 or under a provision of a corresponding law that has substantially the same effect as section 30; volunteers (unlimited purposes) index means an index of DNA profiles derived from material taken – in accordance with Part 4 or under a corresponding law of a participating jurisdiction from volunteers who have been informed under section 30 or under a provision of that corresponding law that has substantially the same effect as section 30 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 Part 8 or under that corresponding law; and from deceased persons whose identity is known; young child means a person under the age of 10 years.

In this Act, a reference to a sample taken from a person includes a reference to a sample taken from the person that consists of or includes matter from another person.

In this Act, a reference to informing a person of a matter is a reference to informing the person of the matter, through an interpreter if necessary, in language (including sign language or braille) in which the person is able to communicate with reasonable fluency.

For the purposes of this Act, a person destroys forensic material taken from another person by a forensic procedure, or forensic material taken from a young child by a sampling procedure, and the information obtained from the analysis of the material if the person – physically destroys the forensic material; and removes any means of identifying the person or young child from whom the forensic material was taken with the information obtained from the analysis of the material from searchable electronic databases, including the DNA database system (except as allowed for in the statistical index).

Nothing in this Act authorises the carrying out of a forensic procedure on a person who is a young child.

A sampling procedure may be carried out, in accordance with Part 4B of this Act, on a person who is a young child.

Nothing in Parts 2, 3, 4, 5, 6 and 7 applies to the carrying out of a forensic procedure on a person because that person is alleged to be the victim of an offence.

Nothing in this Act applies to photographs and video recordings obtained in the course of a police surveillance operation.

This Act is not intended to limit or exclude the operation of another law of the State relating to – the carrying out of forensic procedures, including procedures not referred to in this Act; or 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 the taking of forensic samples, including samples not referred to in this Act; or the carrying out of searches of the person.

To avoid any doubt, it is declared that even if another law of the State provides a power to do one or more of the things referred to in subsection (1), a similar power conferred by this Act may be exercised despite the existence of the power under the other law.

Where a suspect is 15 years old or older – an intimate forensic procedure may be carried out on the suspect in accordance with this Act – if the suspect has given informed consent to the carrying out of the forensic procedure; or on the order of a magistrate; and a non-intimate forensic procedure may be carried out on the suspect in accordance with this Act – if the suspect has given informed consent to the carrying out of the forensic procedure; or on the order of an Officer of Police.

Where a charged person is 15 years or older – an intimate forensic procedure may be carried out on the charged person in accordance with this Act – if the charged person has given informed consent to the carrying out of the forensic procedure; or on the order of a magistrate; and a non-intimate forensic procedure may be carried out on the charged person in accordance with this Act – on the order of any police officer if the charged person is in custody; or on the order of an Officer of Police if the charged person is not in custody.

Where a suspect or charged person is between 10 and 14 years of age (both years inclusive), a forensic procedure may be carried out on the suspect or charged person in accordance with this Act – if both the suspect or charged person and his or her parent have given informed consent to the carrying out of the forensic procedure; or on the order of a magistrate.

For the purposes of this section, a suspect, charged person or parent gives informed consent to the carrying out of a forensic procedure if the suspect, charged person or parent consents to the carrying out of the forensic procedure after a police officer has – requested the suspect, charged person or parent to consent to the procedure; and informed the suspect, charged person or parent about the procedure – in accordance with section 10; and through an interpreter if necessary, in a language (including sign language or braille) in which the suspect, charged person or parent is able to communicate with reasonable fluency.

A police officer may request a suspect, charged person or parent to consent to the carrying out of a forensic procedure on that suspect or charged person.

If a police officer requests a suspect, charged person or parent to consent to the carrying out of a forensic procedure on that suspect or charged person, the police officer must inform the suspect, charged person or parent of the following matters:

the way in which the forensic procedure is to be carried out;

that the forensic procedure may produce evidence relating to the suspect or charged person that might be used in a court of law;

that the forensic procedure will be carried out by an authorised person;

if relevant, that the suspect or charged person may have present during the carrying out of an intimate forensic procedure a medical practitioner of his or her choice;

if relevant, that the suspect or charged person may have present during the taking of a dental impression a dentist of his or her choice;

that the suspect, charged person or parent may refuse to consent to the carrying out of the forensic procedure and that the refusal to consent to the forensic procedure may result in an Officer of Police making an order, or a police officer applying to a magistrate to make an order, authorising the carrying out of the forensic procedure, as the case requires;

that information obtained from the analysis of forensic material obtained from the forensic procedure may be placed on the DNA database system.

This Division applies in respect of a suspect or charged person who is 15 years old or older.