Crimes Act 1914
Part ID
-
Forensic procedures
•
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
).
•
contains offences in relation to the Commonwealth DNA database system and the National Criminal Investigation DNA Database (
NCIDD
) (Division
8A
); and
•
provides for the whole or a part of the Commonwealth DNA database system to be integrated with the whole or a part of one ore more State/Territory DNA database systems to form part of NCIDD (Division
8A
); and
•
provides for the exchange of information in the Commonwealth DNA database system or a State/Territory DNA database system and the protection of the information that is exchanged (Division
11
); and
•
provides for the destruction of forensic material (Division
8
).
Division 6B
-
Carrying out of forensic procedures on volunteers and certain other persons
SECTION 23XWR
Informed consent of volunteer or parent or guardian of volunteer
(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, in accordance with the regulations, 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:
(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 Commonwealth DNA database system;
(b) that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and
(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 Commonwealth DNA database system may be used under Division 8A ;
(d) that information placed on the Commonwealth 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;
(da) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:
(db) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:
(e) any other matters prescribed by the regulations.
View history note
Hide history noteSimplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
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 ).
However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division 9A ).
This Part also:
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, in accordance with the regulations, 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 Commonwealth DNA database system;
(b) that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and
(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 Commonwealth DNA database system may be used under Division 8A ;
(d) that information placed on the Commonwealth 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;
(da) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:
(i) the name of the foreign law enforcement agency that has made the request;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;
(iii) that the forensic evidence may be used in proceedings in the foreign country;
(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;
(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;
(vi) the content of those undertakings;
(db) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:
(i) the name of the international tribunal for which the request was made;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;
(iii) that the forensic evidence may be used in proceedings in the international tribunal;
(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;
(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;
(vi) the content of those undertakings;
(e) any other matters prescribed by the regulations.