Part ID
-
Forensic procedures
History
Part ID (heading) substituted by No 41 of 2003, s 3 and Sch 3 item 40, effective 3 June 2003. For saving provision, see note under s 23C(7). The heading formerly read:
Part 1D
-
Forensic procedures
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
•
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
).
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:
•
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
).
History
Simplified outline amended by No 34 of 2018, s 3 and Sch 1 item 101, by substituting
"
or an international tribunal,
"
for
"
(as contemplated by the Mutual Assistance in Criminal Matters Act 1987)
"
, effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
.
Simplified outline amended by No 7 of 2012, s 3 and Sch 3 item 70, by inserting the para relating to Div 9A, effective 20 September 2012.
Simplified outline amended by No 130 of 2006, s 3 and Sch 1 item 1, by substituting all the words from and including
"
This Part also
"
, effective 5 November 2006. No 130 of 2006, s 3 and Sch 1 item 52 contains the following transitional provision:
Transitional
52
For the purposes of the application of Part ID of the
Crimes Act 1914
after 5 November 2006, a reference to the Commonwealth DNA database system is taken, in relation to a thing that happened before 5 November 2006, to include a reference to the DNA database system (within the meaning of that Act as in force immediately before 5 November 2006).
The words formerly read:
This Part also provides for:
•
the establishing of a DNA database system (Division
8A
); and
•
offences in relation to the DNA database system (Division
8A
); and
•
the protection of information stored in the DNA database system (Division
11
); and
•
the destruction of forensic material (Division
8A
).
Simplified Outline substituted by No 22 of 2001, s 3 and Sch 1 item 4, effective 6 October 2001. The Simplified Outline formerly read:
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on people who are suspects in relation to indictable offences.
In different circumstances, forensic procedures may be carried out on suspects:
•
with the informed consent of the suspect; or
•
by order of a senior constable; or
•
by order of a magistrate.
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
).
If a forensic procedure authorised by this Part is not carried out as required by this Part (in particular Division
6
), evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
Division
11
provides for the taking of blood samples from people convicted of serious offences.
Division 6B
-
Carrying out of forensic procedures on volunteers and certain other persons
History
Div 6B inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
SECTION 23XWU
Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person
(1)
A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:
(a)
the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or
(b)
the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:
(i)
that the parent or guardian is a suspect; and
(ii)
that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or
(c)
the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent; or
(d)
in the case of a forensic procedure requested by a foreign country or an international tribunal
-
a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part.
History
23XWU(1) amended by No 34 of 2018, s 3 and Sch 1 item 120, by substituting para (d), effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
.
S 23XWU(1) amended by No 31 of 2018, s 3 and Sch 2 item 86, by substituting
"
Attorney-General
"
for
"
Attorney-General
"
in para (d), effective 11 May 2018. For transitional rules, see note under s
23YUK
.
[
CCH Note:
The amendment by No 31 of 2018, Sch 2 item 86 re-inserts the references to the Attorney-General: see item 3 of the table in subsection
19(1)
of the
Acts Interpretation Act 1901
.]
S 23XWU(1) amended by No 7 of 2012, s 3 and Sch 3 item 95, by inserting para (d), effective 20 September 2012.
(1A)
However, a magistrate is not authorised to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency.
History
S 23XWU(1A) inserted by No 7 of 2012, s 3 and Sch 3 item 96, effective 20 September 2012.
(2)
In determining whether to make an order under this section, the magistrate is to take into account the following:
(a)
whether this Part would authorise the carrying out of the forensic procedure apart from this section;
(b)
if the forensic procedure is being carried out for the purposes of the investigation of a particular offence
-
the seriousness of the circumstances surrounding the commission of the offence;
(c)
the best interests of the child or incapable person;
(d)
so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;
Note:
A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph
23XWQ(2)(b)(ii)
and subsection
23XWQ(3)
.
(e)
except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;
(f)
whether the carrying out of the forensic procedure is justified in all the circumstances.
(3)
An order under this section may:
(a)
require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or
(b)
specify the period for which forensic material obtained from carrying out the procedure may be retained.
History
S 23XWU inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
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