Crimes Act 1958

The Chief Commissioner of Police may authorise a person or a class of persons to take non-intimate samples or to conduct physical examinations of a non-intimate part of the body for the purposes of this Subdivision.

The Chief Commissioner of Police may authorise a police officer or police custody officer, or a class of police officers or police custody officers, to supervise for the purposes of subsection (3A) or (3AC)—

the taking of scrapings from the mouth; or

the taking of a DNA profile sample that is a scraping from the mouth.

The Chief Commissioner must give a copy of an authority under subsection (1) or (1A) to the Minister who must cause it to be laid before the Legislative Council and the Legislative Assembly before the expiration of the seventh sitting day of the Council or the Assembly, as the case may be, after it has been received by the Minister.

The taking of a DNA profile sample or the conduct of a forensic procedure in accordance with this Subdivision, must be taken or conducted by the least intrusive and least painful method practicable in the circumstances.

For the purposes of a forensic procedure under this Subdivision—

an intimate sample (other than a dental impression) or a physical examination of an intimate part of the body may only be taken or conducted by a medical practitioner or nurse or midwife of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined;

a dental impression may only be taken by a dentist;

a non-intimate sample or a physical examination of a non-intimate part of the body may be taken or conducted by a medical practitioner or nurse, or midwife or a person authorised in accordance with subsection (1).

For the purposes of a DNA profile sample taken in accordance with this Subdivision—

a sample may only be taken by a medical practitioner or nurse of the same sex, if practicable, as the person from whom the sample is to be taken; and

if the sample is to be taken from a child the sample must be taken in the presence of a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person of the same sex, if practicable, as the child.

Despite subsection (3), a person from whom a sample of hair, other than pubic hair, is to be taken in accordance with—

an authorisation given under section 464SA; or

an order made by a court under this Subdivision—

a scraping is appropriate in the circumstances; and

it is appropriate for the person to take the scraping.

An election made by a person under subsection (3AA) must be recorded by audio recording or audiovisual recording or in writing signed by the person.

Despite subsection (3AAA), a person from whom a DNA profile sample is to be taken in accordance with this Subdivision may elect to provide instead a scraping taken by the person from their mouth if a police officer authorised in accordance with subsection (1A) considers that it is appropriate for the person to take the scraping.

An election made by a person under subsection (3AC) must be recorded by audio recording or audiovisual recording or in writing signed by the person.

Nothing in subsection (3) or (3AAA) prevents a person from whom a scraping from the mouth is to be taken from taking the scraping himself or herself under the supervision of a police officer or police custody officer authorised in accordance with subsection (1A) if—

the police officer or police custody officer considers it appropriate for the person to do so; and

the person consents to taking the scraping and the consent is recorded by audio recording or audiovisual recording or in writing signed by the person.

The police officer referred to in subsection (3AA) or (3AC), or the police officer or police custody officer referred to in subsection (3A), must give or send by registered post to the person from whom a scraping is taken or his or her legal practitioner, without charge—

if the election or consent is recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the election is made or the consent is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and

if the election or consent is recorded in writing, a copy of the record forthwith.

A person from whom an intimate sample is to be taken (except a scraping from a person's mouth to be taken by that person) or who is to undergo a physical examination of an intimate part of the body may request that a medical practitioner or nurse or midwife or, if a dental impression is to be taken, a dentist of his or her choice take the sample or conduct the examination or be present during the forensic procedure.

If a medical practitioner, nurse, midwife or dentist is chosen by a person under subsection (4)—

if practicable, the forensic procedure is to be conducted by or in the presence of the chosen person; and

if the chosen person conducts the forensic procedure, a medical practitioner, nurse or dentist (as the case requires) nominated by the police must be present.

A sample must be taken or a physical examination must be conducted—

if taken or conducted by a medical practitioner, nurse, midwife or dentist, in a manner consistent with the appropriate medical or dental standards; and

in the presence of a police officer or police custody officer who is present to witness the taking of the sample or the conduct of the physical examination, subject to subsection (9), and is of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined; and

in circumstances affording reasonable privacy to the person from whom the sample is to be taken or who is to be examined; and

in the presence only of—

a police officer or police custody officer required by paragraph (ab) to be present; and

a person required by section 464ZA to be present; and

a person referred to in subsection (5); and

a police officer or police custody officer referred to in subsection (3A).

A blood sample for the purposes of this Subdivision must not exceed 10 millilitres.

For the purposes of this Subdivision, a person is authorised to take a sample of hair by removing the root of the hair only if—

the person takes only so much hair as the person believes is necessary for analysis of the sample or other examination of the hair; and

strands of hair are taken using the least painful technique known and available to the person.

This Subdivision does not compel any medical practitioner, nurse, midwife or dentist to take a sample from a person nor to conduct a physical examination of a person nor to be present when a sample is taken or an examination is conducted.

If a scraping is to be taken from a person's mouth and the person is to take it, the witness required by subsection (6)(ab) to be present need not be of the same sex as the person.