2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Crimes (Forensic Procedures) Act 2000, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Crimes (Forensic Procedures) Amendment Act 2008.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This part amends the Crimes (Forensic Procedures) Act 2000.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

• s 96 (1) (Use of information on ACT DNA database)

• s 97 (3) (Permissible matching of DNA profiles)

• s 98 (Recording, retention and removal of identifying information on ACT DNA database).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

transgender

or intersex

(g) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts.

transgender

or intersex

(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts).

An investigating police officer, for an offence in relation to which a forensic procedure is carried out or proposed to be carried out, is—

(a) the police officer in charge of the investigation of the offence; or

(b) any other police officer directed by the police officer in charge to do something in relation to the investigation.

(b) an investigating police officer; or

(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, will be recorded by electronic means or in writing, and that the suspect has a right to a copy of that record;

(k) that information obtained from analysis of forensic material obtained may be placed on the ACT DNA database and the rules that will apply to its disclosure and use under this Act, including that the information may be compared with information from the DNA databases of other participating jurisdictions;

(l) that the suspect may apply to a court for an order that the forensic material obtained be destroyed, and the circumstances when the court may order destruction.

(2) The police officer must inform the suspect that the suspect may request that a doctor of the suspect’s choice be present while an intimate forensic procedure (other than the taking of a dental impression) is carried out or a sample of saliva or sample by buccal swab is taken.

saliva or

sample by

(4) If the suspect is in custody and the forensic procedure is a non-intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent—

(a) a police officer may order the carrying out of the forensic procedure under part 2.4 (Non-intimate forensic procedures on suspect by order of police officer) if the police officer is satisfied about the matters mentioned in section 23 (Matters to be considered by police officer before requesting consent to forensic procedure); and

(b) reasonable force may be used to enable the forensic procedure to be carried out.

(5) If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent—

(a) an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure; and

(b) reasonable force may be used to enable the forensic procedure to be carried out if the order is made.

(6) If the suspect is not in custody, the police officer must inform the suspect that, if the suspect does not consent—

(a) an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure; and

(b) reasonable force may be used to enable the forensic procedure to be carried out if the order is made.

, and the procedure is an intimate forensic procedure

(1) If the suspect is not in custody—

(a) the Magistrates Court may, on the application of a police officer, issue a summons for the appearance of the suspect at the hearing of the application; or

(b) a magistrate may, on the application of a police officer, issue a warrant for the arrest of the suspect to bring the suspect before the magistrate for the hearing of the application.

(1) This section applies if an authorised applicant has applied under section 35 for an order authorising the carrying out of a forensic procedure on a suspect.

(1A) The suspect must be present at the hearing of the application unless—

(a) the suspect is remanded or otherwise detained in lawful custody in a State and it is not practicable for the suspect to be present by audio link or audiovisual link; or

(b) the application (and any summons issued under section 37 (1) (a)) has been served on the suspect and the suspect is not present.

(6) In this section:

audio link means a system of 2-way communication linking different places so that a person speaking at any of them can be heard at the other places.

audiovisual link means a system of 2-way communication linking different places so that a person at any of them can be seen and heard at the other places.

(c) if the suspect is present or represented by a lawyer—inform the suspect or lawyer that reasonable force may be used to enable the forensic procedure to be carried out; and

(d) if the suspect is a child or incapable person—inform the suspect’s interview friend or lawyer that reasonable force may be used to enable the forensic procedure to be carried out.

(4) The suspect must be in the presence of the authorised applicant when the application is made unless the suspect is remanded or otherwise detained in lawful custody in a State and it is not practicable for the suspect to be present by audio link or audiovisual link.

Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1).

Note 2 The Evidence (Miscellaneous Provisions) Act 1991, s 20 (Territory courts may take evidence and submissions from outside ACT) applies in relation to the taking of evidence and making of submissions by audiovisual link or audio link from a participating State. See also the Magistrates Court Act 1930, s 311 (Appearance by audiovisual or audio links etc).

(7) In this section:

audio link—see section 38 (6).

audiovisual link—see section 38 (6).

(a) the suspect (if present);

In this part:

relevant person means the suspect, serious offender or volunteer on whom a forensic procedure is, or is to be, carried out.

suspect

relevant person

(1) Before a forensic procedure is carried out on a person in relation to the investigation of a matter by a police officer, a police officer must ensure that the person is informed about—

(a) the person’s right to request—

(i) if a sample is to be taken from the person, and there is sufficient material for an analysis to be carried out by or for the person and the officer—that a part of the material sufficient for analysis be made available to the person; and

(ii) if a photograph or a video recording of a part of the person’s body is to be taken—that a copy of the photograph or video recording be made available to the person; and

(iii) if a sample is to be taken from the person, and material from the sample is analysed in the investigation of the matter—that a copy of the results of the analysis be made available to the person; and

(b) the person’s right (if any) to have a doctor or dentist of the person’s choice present.

(2) The police officer must, if practicable, ensure that the giving of the information mentioned in subsection (1), and the person’s responses (if any) are recorded by audiotape, videotape or other electronic means.

(3) If electronic recording of the giving of the information and the person’s responses (if any) is not practicable, the police officer must ensure that a written record of the giving of the information and the person’s responses (if any) is made, and that a copy of the record is made available to the person.

Note Pt 2.14 contains provisions about making copies of material (including tapes) available to the person.

(1) This section applies if—

(a) a forensic procedure is to be carried out on a transgender or intersex person; and

(b) the provision under which it is carried out refers to a person of the opposite sex, or the same sex.

(2) The transgender or intersex person may elect to be identified as a male or female.

(3) If the transgender or intersex person is a child or incapable person, the transgender or intersex person’s interview friend or lawyer may elect that the person be identified as a male or female.

(4) If the election is to be identified as a male, the transgender or intersex person is taken, for this Act, to be male.

(5) If the election is to be identified as a female, the transgender or intersex person is taken, for this Act, to be female.

(6) If the transgender or intersex person does not make an election under subsection (2), but requires that the forensic procedure be carried out by a male, the person is taken, for this Act, to be male.

(7) If the transgender or intersex person’s interview friend or lawyer does not make an election under subsection (3), but requires that the forensic procedure be carried out by a male, the transgender or intersex person is taken, for this Act, to be male.

(8) If the transgender or intersex person does not make an election under subsection (2), but requires that the forensic procedure be carried out by a female, the person is taken, for this Act, to be female.

(9) If the transgender or intersex person’s interview friend or lawyer does not make an election under subsection (3), but requires that the forensic procedure be carried out by a female, the transgender or intersex person is taken, for this Act, to be female.

suspect

relevant person

A person is authorised to take a sample of hair of a relevant person by removing the root of the hair only if—

(a) the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the relevant offence; and

(b) the sample is taken using the least painful technique known and available to the person.

suspect’s

relevant person’s

suspect

relevant person

Note Appropriately qualified person is defined in s 13.

(1) If an intimate forensic procedure (other than the taking of a sample of blood or a dental impression) is to be carried out on a relevant person, the person carrying it out, and anyone asked under section 55 to help carry it out, must be of the same sex as the relevant person.

(2) If an intimate forensic procedure that is the taking of a sample of blood or a dental impression is to be carried out on a relevant person—

(a) the person carrying it out must, if practicable, be of the same sex as the relevant person; and

(b) anyone asked under section 55 to help carry it out must be of the same sex as the relevant person.

(3) If a non-intimate forensic procedure (other than a forensic procedure mentioned in subsection (4)) is to be carried out on a relevant person, the person carrying it out, and anyone asked under section 55 to help carry it out, must be of the same sex as the relevant person.

(4) Subsection (3) does not apply to—

(a) the taking of a handprint, fingerprint, footprint or toeprint; or

(b) any other non-intimate forensic procedure that may be carried out without—

(i) touching the relevant person; or

(ii) requiring the relevant person to remove any clothing (other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat).

(5) If the person on whom a forensic procedure is to be carried out is a volunteer—

(a) the person may request that a person of the opposite sex carry out or help carry out the procedure; and

(b) any such request must be complied with, despite subsections (1) to (3).

(1) A suspect or volunteer is entitled to request a doctor of the person’s choice to be present while an intimate forensic procedure (other than the taking of a dental impression) is carried out or a sample of saliva or sample by buccal swab is taken.

(1A) A suspect or volunteer is entitled to request a dentist of the person’s choice to be present while a dental impression, sample of saliva or sample by buccal swab is taken.

(2) If a sample of blood is to be taken from a serious offender, the offender is entitled to request that—

(a) if the serious offender is serving a sentence of imprisonment at a correctional centre or other place of detention—a corrections health professional for the centre or place be present while the sample is taken; or

(b) if the serious offender is not serving a sentence of imprisonment—a doctor of the serious offender’s choice be present while the sample is taken.

(2A) If a sample by buccal swab is to be taken from a serious offender, the offender is entitled to request that—

(a) if the serious offender is serving a sentence of imprisonment at a correctional centre or other place of detention—a corrections health professional for the centre be present while the sample is taken; or

(b) if the serious offender is not serving a sentence of imprisonment—a doctor or dentist of the serious offender’s choice be present while the sample is taken.

Note Section 103 provides that the request may be made by the relevant person’s lawyer or interview friend.

suspect on

relevant person on

suspect’s

relevant person’s

suspect

relevant person

suspect

relevant person

(b) any other non-intimate forensic procedure that may be carried out without—

(i) touching the relevant person; or

(ii) requiring the relevant person to remove any clothing (other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat).

(1) The carrying out of a forensic procedure must be videorecorded unless—

(a) the relevant person objects to video recording; or

(b) video recording is not reasonably practicable.

(2) However, the carrying out of the following forensic procedures need not be videorecorded:

(a) the taking of a handprint, fingerprint, footprint or toeprint;

(b) the taking of a photograph or video recording of a part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts).

(3) Before the forensic procedure is carried out, the relevant person must—

(a) be given an explanation of the value of making a video recording of the carrying out of the forensic procedure to avoid disputes about how it was carried out that might otherwise arise between the relevant person and the person carrying out the procedure after it is carried out; and

(b) be informed that the relevant person may object to the video recording.

(4) If the carrying out of a forensic procedure (other than a forensic procedure to which subsection (2) applies) is not to be videorecorded, the forensic procedure must be carried out in the presence of an independent person who is not a police officer.

(5) However, an independent person need not be present as mentioned in subsection (4) if the relevant person expressly and voluntarily waives the person’s right to have an independent person present.

(6) Despite a waiver mentioned in subsection (5), a police officer may direct that an independent person be present.

(1) This section applies to a sample taken from a relevant person under this Act in relation to the investigation of a matter by a police officer if there is sufficient material for an analysis to be carried out by or for the relevant person and the officer.

(2) A police officer must ensure that reasonable care is taken to ensure that a part of the material sufficient for analysis to be carried out by or for the relevant person is protected and preserved until—

(a) if the relevant person makes a request under subsection (3)—the person receives it; or

(b) in any other case—the material is required to be destroyed under this Act or by a court order.

(3) The relevant person may request that a part of the material sufficient for analysis be made available to the relevant person as soon as practicable.

Note Section 103 provides that the request may be made by the lawyer or interview friend of a suspect, serious offender or volunteer.

(4) If the relevant person makes a request under subsection (3)—

(a) a police officer must ensure that a part of the material sufficient for analysis is made available to the relevant person as soon as practicable; and

(b) reasonable assistance is given to the relevant person to ensure that the material is protected and preserved until it is analysed.

Note Pt 2.14 contains provisions about making material available to suspects, serious offenders and volunteers.

(1) This section applies if a forensic procedure involves the taking of a photograph or video recording of a part of a relevant person’s body.

(2) The relevant person may request that a copy of the photograph or video recording be made available to the relevant person.

Note 1 Section 103 provides that the request may be made by the lawyer or interview friend of a suspect, serious offender or volunteer.

Note 2 Section 105 provides that the copy must be made available as soon as practicable after the request is made.

(3) If the relevant person makes a request under subsection (2), a police officer must ensure that a copy of the photograph or video recording is made available to the relevant person.

Note Pt 2.14 contains provisions about making material available to suspects, serious offenders and volunteers.

(1) This section applies if material from a sample taken from a relevant person is analysed in the investigation of a matter by a police officer.

(2) The relevant person may request that a copy of the results of the analysis be made available to the relevant person.

Note 1 Section 103 provides that the request may be made by the lawyer or interview friend of a suspect, serious offender or volunteer.

Note 2 Section 105 provides that the copy must be made available as soon as practicable after the request is made.

(3) If the relevant person makes a request under subsection (2), a police officer must ensure that a copy of the results of the analysis is made available to the relevant person.

Note Pt 2.14 contains provisions about making material available to suspects, serious offenders and volunteers.

A person is authorised under section 65 or section 66 to carry out a forensic procedure under this part only in accordance with part 2.6.

A person is authorised to carry out a forensic procedure under this part on a serious offender even if the serious offender is also a suspect or volunteer.

(e) that the forensic procedure will be carried out by a person who may carry out the procedure under part 2.6 (Carrying out forensic procedures);

(i) if the serious offender is serving a sentence of imprisonment at a correctional centre or other place of detention—a corrections health professional for the centre or place be present while the blood is taken; or

(fa) if the forensic procedure is the taking of a sample by buccal swab—that the serious offender may request that—

(i) if the serious offender is serving a sentence of imprisonment at a correctional centre or other place of detention—a corrections health professional for the centre or place be present while the sample is taken; or

(ii) if the serious offender is not serving a sentence of imprisonment—a doctor or dentist of the serious offender’s choice be present while the sample is taken;

(j) that information obtained from analysis of forensic material obtained may be placed on the ACT DNA database and used for a criminal investigation or any other purpose for which the DNA database may be used, including that the information may be compared with information from the DNA databases of other participating jurisdictions.

as applied by section 67 (Application of pt 2.6 to carrying out of forensic procedures to which pt 2.7 applies)

(3) A person is authorised under this section to carry out a forensic procedure under this part only in accordance with part 2.6.

(4) However, the following provisions in part 2.6 do not apply to the carrying out of a forensic procedure under this part on a volunteer:

(a) section 50 (Use of force in carrying out forensic procedures);

(b) section 55 (3) (Person may get help to carry out forensic procedure);

(c) section 63 (Preventing the carrying out of forensic procedure).

(1) A volunteer, or a 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 who is not a police officer after a police officer informs the volunteer, parent or guardian (orally or in writing) about the following:

(a) how the forensic procedure is to be carried out;

(b) that the volunteer, parent or guardian may request that a doctor of the person’s choice be present while an intimate forensic procedure (other than the taking of a dental impression) is carried out or a sample of saliva or sample by buccal swab is taken;

(c) if the forensic procedure is the taking of a dental impression, sample of saliva or sample by buccal swab—that the volunteer, parent or guardian may request that a dentist of the person’s choice be present while the procedure is carried out;

(d) that the volunteer is under no obligation to undergo the forensic procedure;

(e) that the forensic procedure may produce evidence that might be used in a court of law;

(f) that the volunteer, parent or guardian may consult a lawyer of his or her choice before deciding whether or not to consent to the forensic procedure;

(g) that if the volunteer, parent or guardian consents to the forensic procedure—

(A) the consent is also consent to the retention of forensic material taken and information obtained from analysis of the material; and

(B) the chief police officer and the volunteer, parent or guardian may set a period for which the material or information may be retained, but it must then be destroyed unless a magistrate orders retention under section 84;

(h) that the volunteer, parent or guardian may at any time withdraw consent to the volunteer’s undergoing the forensic procedure or to retention of the forensic material taken or of information obtained from the analysis of the material;

(i) to the extent that they are relevant, the matters mentioned in subsection (3).

(2) However, an independent person must not be present as mentioned in subsection (1) if the volunteer, parent or guardian requests that an independent person not be present.

(3) The police officer must inform the volunteer, or parent or guardian of the volunteer, about the following:

(a) that information obtained from analysis of forensic material taken from a person under this part, and about the identity of the person, may be placed on the ACT DNA database, and that the information may be compared with information from the DNA databases of other participating jurisdictions;

(b) if the police officer intends the information to be placed on the volunteers (limited purposes) index—the purpose for which it is to be placed on the index, and that the information may be used only for that purpose;

(c) if the police officer intends the information to be placed on the volunteers (unlimited purposes) index—that the information may be used for a criminal investigation or any other purpose for which the ACT DNA database may be used;

(d) anything else prescribed by regulation.

(1) This section applies if—

(a) a volunteer, or parent or guardian of a volunteer, consents in accordance with section 80 for a forensic procedure to be carried out on the volunteer; and

(b) forensic material is taken from the volunteer.

(2) The volunteer, parent or guardian is taken to consent to the retention of the forensic material and information obtained from analysis of the material.

Note Section 82 (2) provides that, if the volunteer, parent or guardian expressly withdraws consent to the retention, the forensic material or information must be destroyed as soon as practicable after the consent is withdrawn unless a magistrate orders retention under s 84.

(3) The chief police officer and the volunteer, parent or guardian may set the period for which the forensic material or information obtained from analysis of the material may be retained (the agreed retention period).

Note Section 82 (4) provides that, if the agreed retention period ends, the forensic material or information must be destroyed as soon as practicable unless a magistrate orders retention under s 84.

(1) This section applies if a police officer gives information to a volunteer, or parent or guardian of a volunteer, in accordance with section 80 in relation to a forensic procedure to be carried out on the volunteer.

(2) The police officer must, if practicable, ensure that the following are recorded by audiotape, videotape or other electronic means (electronic recording):

(a) the giving of the information about the proposed forensic procedure;

(b) the volunteer’s, parent’s or guardian’s responses (if any);

(c) if the volunteer, parent or guardian makes a request mentioned in section 80 (2)—the making of the request.

(3) However, a written record of the things mentioned in subsection (2) (a) to (c) must be made, and a copy made available to the volunteer, parent or guardian if—

(a) the volunteer, parent or guardian requests that a written record is made instead of an electronic recording; or

(b) electronic recording is not practicable.

(4) Before the forensic procedure is carried out, the volunteer, parent or guardian must be informed that the volunteer, parent or guardian may request that a written record is made instead of an electronic recording.

(2) If, after the carrying out of a forensic procedure under this part on a volunteer, the volunteer, or a parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or information obtained from analysis of the material, the material or information must be destroyed as soon as practicable after the consent is withdrawn.

(4) Forensic material taken from the volunteer or information obtained from analysis of the material must be destroyed as soon as practicable after the end of the agreed retention period.

(5) However, material or information is not required to be destroyed under subsection (2) or (4) if an application for retention of the material or information has been made under section 84 (Retention of forensic material etc by order of magistrate) and the application has not been finally decided or a magistrate has ordered retention.

(6) In this section:

agreed retention period—see section 80A (3).

(3) An order under this section—

(a) may require the forensic procedure to be carried out at a date, time or place, or in a way, stated in the order; and

(b) must state the period for which forensic material obtained from carrying out the procedure or information obtained from analysis of the material may be retained.

(1) This section applies if—

(a) a volunteer, or parent or guardian of a volunteer, gave consent in accordance with section 80 for a forensic procedure to be carried out on the volunteer; and

(b) forensic material was taken from the volunteer; and

(c) either—

(i) the volunteer, parent or guardian withdraws consent to the retention of the forensic material or information obtained from analysis of the material; or

(ii) the agreed retention period for the forensic material or information ends.

(1A) An authorised applicant may apply to a magistrate for an order under subsection (2).

Note Section 82 (5) provides that the forensic material or information is not required to be destroyed under s 82 (2) or (4) if an application for retention of the material or information has been made under this section and the application has not been finally decided or a magistrate has ordered retention.

(2) A magistrate may order that the forensic material or information be retained if satisfied that—

(3) The order must state the period for which the forensic material or information may be retained.

(4) In this section:

agreed retention period—see section 80A (3).

(1) This section applies if a volunteer volunteers to undergo a forensic procedure for the purpose of—

(a) placing the volunteer’s DNA profile on the ACT DNA database; and

(b) comparing the volunteer’s DNA profile with a DNA profile on the missing person’s index or unknown deceased person’s index of a DNA database.

(2) If the volunteer’s DNA profile matches a DNA profile on the missing person’s index or unknown deceased person’s index, a police officer must inform the volunteer about the match as soon as practicable after the day the match is made.

The Minister may enter into an agreement with 1 or more forensic laboratories accredited with the National Association of Testing Authorities Australia to analyse forensic material for the Territory.

DNA database system

ACT DNA database

(2) This section does not apply if—

(a) this Act or a court order requires forensic material to be destroyed; and

(b) the forensic material has not been destroyed.

Note Section 86 applies if this Act or a court order requires forensic material to be destroyed.

(1) If this Act or a court order requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to—

the investigating police officer

an investigating police officer

section 84 (Retention of forensic material by order of magistrate after parent or guardian of child or incapable person withdraws consent)

section 84 (Retention of forensic material etc by order of magistrate)

(1) If forensic material has been taken from a suspect by a forensic procedure carried out under part 2.3 (Forensic procedures by consent of suspect), part 2.4 (Non-intimate forensic procedures on suspect by order of police officer) or part 2.5 (Forensic procedures on suspect by order of magistrate), the suspect may apply to a court for an order that the forensic material be destroyed.

(2) However, the suspect may not make an application under this section—

(a) if a proceeding against the suspect for an offence to which the forensic material relates has begun and not been finally decided (including any appeal); or

(b) if—

(i) the suspect is convicted of an offence to which the forensic material relates; and

(ii) the suspect—

(A) does not appeal against the conviction in the appeal period; or

(B) appeals against the conviction and the appeal is unsuccessful.

(3) An application under this section may only be made 1 year or later after—

(a) the day the forensic material was taken; or

(b) if an application for destruction of the forensic material has previously been refused under this section—the day an application was last refused.

(4) On application, the court must order that the forensic material be destroyed unless satisfied that—

(a) there are reasonable grounds to believe that the forensic material is likely to be of probative value in relation to the investigation of, or a proceeding for, an offence (including the offence in relation to which the forensic material was taken from the suspect but, for that offence, not in relation to the suspect); and

(b) the destruction of the forensic material is not justified in all the circumstances.

(5) The court may order when the forensic material must be destroyed.

(6) If the court orders that forensic material be destroyed, the court must ensure that the responsible person for the ACT DNA database is told about the order.

ACT DNA database—see section 94A.

DNA system

ACT DNA database

(i) under part 2.8 (Carrying out of forensic procedures on volunteers and certain other people) from volunteers who (or whose parents or guardians) have been informed under section 80 (3) (c) (Informed consent of volunteer or parent or guardian of volunteer) that information obtained may be used for a criminal investigation or any other purpose for which the ACT DNA database may be used; or

(1) The Minister must ensure a DNA database system (the ACT DNA database) is kept.

(2) The Minister may enter into an agreement (a database agreement) with 1 or more entities to keep the ACT DNA database, or part of the database, on behalf of the Territory.

(3) To remove any doubt, if the Minister enters into a database agreement, it does not affect the Territory’s powers in relation to the ACT DNA database.

(4) If the Minister enters into a database agreement, the Minister may access the ACT DNA database to review and audit it.

Note The Legislation Act, s 254A provides that the Minister may delegate the Minister’s functions under an Act to ‘anyone else’. A reference to ‘anyone else’ is a reference to a person generally (see Legislation Act, s 160).

DNA database system

ACT DNA database

prohibited analysis, of forensic material, means analysis for the purpose of deriving a DNA profile for inclusion on an index of the ACT DNA database if—

(a) this Act or a law of another jurisdiction prescribed by regulation requires the material to be destroyed; or

(b) a court orders that the material be destroyed.

(1) A person commits an offence if—

(a) the person accesses information on the ACT DNA database; and

(b) the access is not authorised under this section.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

DNA database system

ACT DNA database

(d) the purpose of, and in accordance with, an arrangement entered into under section 102 (Database information) for the provision of access to information on the ACT DNA database by law enforcement officers or anyone else prescribed by regulation;

(2A) The following entities may access information on the ACT DNA database for the purpose of reviewing or auditing the database:

(a) the auditor-general;

(b) the human rights commissioner;

(c) the ombudsman;

(d) the privacy commissioner;

(e) an entity of another participating jurisdiction prescribed by regulation;

(f) any other entity prescribed by regulation.

(1) A matching of a DNA profile on an index of the ACT DNA database mentioned in table 97, column 1 with a DNA profile on another index of the database mentioned in column 2, 3, 4, 5, 6, 7 or 8 is not permitted by this Act if—

(a) ‘only if within purpose’ is shown in relation to the index mentioned in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index mentioned in column 1; and

(b) the matching is carried out for a purpose other than a purpose for which the DNA profile placed on the volunteers (limited purposes) index mentioned in column 1 was so placed.

(2) A matching of a DNA profile on an index of the ACT DNA database mentioned in table 97, column 1 with a DNA profile on another index of the database mentioned in column 2, 3, 4, 5, 6, 7 or 8 is permitted by this Act if—

(a) ‘yes’ is shown in relation to the index mentioned in column 2, 3, 4, 5, 6, 7 or 8 opposite the index mentioned in column 1; or

(b) ‘only if within purpose’ is shown in relation to the index mentioned in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index mentioned in column 1 and the matching is carried out for a purpose for which the DNA profile placed on the volunteers (limited purposes) index mentioned in column 1 was so placed.

(3) A person commits an offence if—

(a) the person’s conduct causes the matching that is not permitted by this Act of a DNA profile on an index of the ACT DNA database with a DNA profile on the same or another index of the ACT DNA database; and

(b) the person intends, or is reckless about, the matching.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(4) This section does not make it an offence for conduct to cause a matching that is not permitted by this Act if the matching is solely for the purpose of administering the ACT DNA database.

(1) A person commits an offence if—

(a) this Act requires that forensic material taken from someone else (the relevant person) under this Act be destroyed; and

(b) the person’s conduct causes any identifying information about the relevant person obtained from the forensic material to be recorded or retained on the ACT DNA database at any time after the material is required to be destroyed under this Act; and

(c) the person intends, or is reckless about, the recording or retention.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) A person commits an offence if—

(a) a court orders that forensic material taken from someone else (the relevant person) under this Act be destroyed; and

(b) the person’s conduct causes any identifying information about the relevant person obtained from the forensic material to be recorded or retained on the ACT DNA database—

(i) if no appeal against the order is made during the appeal period—at any time after the appeal period; or

(ii) if an appeal against the order is made during the appeal period—at any time after the appeal is finally decided, if the result is that the order is confirmed (however described); and

(c) the person intends, or is reckless about, the recording or retention.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(3) The responsible person for the ACT DNA database must ensure that any identifying information relating to a person from whose forensic material a DNA profile on the volunteers (unlimited purposes) index or volunteers (limited purposes) index of the ACT DNA database was derived is removed from the database as soon as practicable after—

(a) the end of the identifying period for the profile; or

(b) if an application is made under section 84 (Retention of forensic material etc by order of magistrate) for retention of the information—a magistrate does not order the retention; or

(c) if a magistrate orders retention under section 84—the end of the period stated in the order for which the information may be retained.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(4) The responsible person for the ACT DNA database must ensure that any identifying information relating to a DNA profile of a serious offender on the serious offenders index of the ACT DNA database is removed from the database as soon as practicable after becoming aware that the serious offender has been pardoned or acquitted of the serious offence concerned or that the serious offender’s conviction for the serious offence concerned has been quashed.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(5) The responsible person for the ACT DNA database must ensure that any identifying information relating to a DNA profile of a suspect on the suspects index of the ACT DNA database is removed from the database as soon as practicable after the information is required to be removed under section 98A.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(6) In this section:

agreed retention period—see section 80A (3).

identifying information means any information in electronic form that could be used—

(a) to discover the identity of the person from whose forensic material the DNA profile was derived; or

(b) to get information about an identifiable person.

identifying period, for a DNA profile, means—

(a) the period of 1 year after the DNA profile is placed on the ACT DNA database; or

(b) if the DNA profile is derived from forensic material taken from a volunteer—the agreed retention period; or

(c) if the DNA profile is derived from forensic material taken from a dead person (other than a person who was a volunteer) whose identity is known—the period the chief police officer orders the responsible person for the ACT DNA database to retain identifying information relating to the profile.

(1) This section applies if—

(a) forensic material has been taken from a suspect by a forensic procedure carried out under part 2.3 (Forensic procedures by consent of suspect), part 2.4 (Non-intimate forensic procedures on suspect by order of police officer) or part 2.5 (Forensic procedures on suspect by order of magistrate); and

(b) identifying information about the suspect obtained from the material is included on the ACT DNA database.

(2) If—

(a) 1 year has elapsed since the forensic material was taken; and

(b) a proceeding for an offence to which the forensic material relates has not been begun or has been discontinued;

the identifying information must be removed from the ACT DNA database unless a warrant for the apprehension of the suspect has been issued.

(3) If a warrant for the apprehension of the suspect is issued within 1 year after the forensic material is taken, the identifying information must be removed from the ACT DNA database after—

(a) the warrant lapses; or

(b) 1 year elapses after the suspect is apprehended.

(4) If—

(a) the suspect is found guilty of an offence to which the forensic material relates but no conviction is recorded; or

(b) the suspect is acquitted of an offence to which the forensic material relates and—

(i) no appeal is made against the acquittal; or

(ii) an appeal is made against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

the identifying information must be removed from the ACT DNA database unless an investigation into, or a proceeding against the suspect for, another offence to which the forensic material relates is pending.

(5) A magistrate may, on application by the director of public prosecutions, extend for not longer than 1 year the period for which identifying information may be retained under this section, if the magistrate is satisfied there are special reasons for doing so.

(6) A magistrate to whom an application is made under subsection (5) may extend the period only if—

(a) the person from whom the forensic material was taken has been notified by the director of public prosecutions that the application has been made; and

(b) the person or his or her lawyer or interview friend (if any) has been given an opportunity to speak to or make a submission to the magistrate about the extension.

(7) An extension in relation to particular identifying information may be given more than once.

(8) The magistrate must ensure that the responsible person for the ACT DNA database is told about any extension given under this section.

(9) In this section:

identifying information—see section 98 (6).

DNA database means—

(a) the ACT DNA database; or

(b) NCIDD; or

(c) for a participating jurisdiction—a database (whether in computerised or other form and however described) held by, or on behalf of, the participating jurisdiction for the purposes of a corresponding law of the participating jurisdiction.

NCIDD means the database known as the National Criminal Investigation DNA Database and managed by the Commonwealth.

(1) The Minister may enter into arrangements with the responsible Minister of another participating jurisdiction under which—

(a) information from the ACT DNA database is to be provided to the appropriate authority for the jurisdiction for either or both of the following purposes:

(i) the investigation of, or the conduct of a proceeding for, an offence against a law of the Territory or the participating jurisdiction;

(ii) the identification of missing or dead people; and

(b) information from a DNA database of the participating jurisdiction is to be provided to the appropriate authority for the Territory for either or both of the following purposes:

(i) the investigation of, or the conduct of a proceeding for, an offence against a law of the Territory or the participating jurisdiction;

(ii) the identification of missing or dead people.

(2) Without limiting subsection (1), the Minister may enter into arrangements with the responsible Minister of the Commonwealth under which information from the ACT DNA database (the Territory’s information) is to be provided to the appropriate authority for the Commonwealth for the purpose of the authority—

(a) comparing the information with information provided to the authority from a DNA database of another participating jurisdiction (the participating jurisdiction’s information); and

(b) identifying to the appropriate authority for the Territory any matches that are found as a result of the comparison; and

(c) providing the Territory’s information in relation to those matches to the appropriate authority for the Commonwealth or the appropriate authority of the participating jurisdiction; and

(d) providing the participating jurisdiction’s information in relation to those matches to the appropriate authority for the Territory.

(3) An arrangement mentioned in this section may not authorise the comparison of information to match DNA profiles in a way that would contravene section 97 (Permissible matching of DNA profiles) were the information contained wholly on the ACT DNA database.

(4) Information that is provided under this section must not be recorded or maintained on any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person—

(a) at any time after this Act or a corresponding law of another participating jurisdiction requires the forensic material to which it relates to be destroyed; or

(b) if a court orders that the forensic material to which it relates be destroyed—

(i) if no appeal against the order is made during the appeal period—at any time after the appeal period; or

(ii) if an appeal against the order is made during the appeal period—at any time after the appeal is finally decided, if the result is that the order is confirmed (however described).

(1) A request that may be made by a suspect, serious offender or volunteer under this Act may be made, for the person, by—

(a) the person’s lawyer; or

(b) if the person is a child or incapable person—the person’s interview friend.

Note  The interview friend may be a lawyer (see s 16).

(2) Subsection (3) applies if—

(a) this Act requires a suspect, serious offender or volunteer to be informed about a matter; and

(b) the person’s interview friend or lawyer is present when the person is informed about the matter; and

(c) the person is informed in a language (including sign language or braille) in which the person’s interview friend or lawyer cannot communicate with reasonable fluency.

(3) The person’s interview friend or lawyer must also be informed about the matter in a language in which the interview friend or lawyer can communicate with reasonable fluency.

the investigating police officer

an investigating police officer

the investigating police officer

an investigating police officer

60 (2) (a)

60 (4) (a)

DNA database system

ACT DNA database

(a) the purpose of forensic comparison, by a police officer or anyone else prescribed by regulation, in the course of a criminal investigation or an investigation by a police officer relating to a missing or dead person;

DNA database system

ACT DNA database

(ca) the purpose of reviewing or auditing the ACT DNA database;

(d) for the purpose of, and in accordance with, an arrangement entered into under section 102 (Database information) for the provision of access to information on the ACT DNA database by law enforcement officers or anyone else prescribed by regulation;

(2) A person is authorised to carry out a forensic procedure under part 2.7 on a serious offender whether the serious offender was convicted of the serious offence concerned before, or is convicted of the serious offence concerned after, the commencement of this subsection.

(1) This section applies if the Minister entered into an arrangement with a responsible Minister of a participating jurisdiction mentioned in section 102 (Database information) before the commencement of this section.

(2) To remove any doubt, the arrangement is not ended only because of the enactment of the Crimes (Forensic Procedures) Amendment Act 2008.

(3) This section expires 1 year after the day it commences.

• auditor-general

• correctional centre

• entity (see s 184A)

• human rights commissioner

• ombudsman

• privacy commissioner

ACT DNA database—see section 94A.

appeal period, for an appeal to a court against an order, means the period stated by a territory law during which an appeal against the order may be made without the court’s leave.

corrections health professional, for a correctional centre, means a health professional appointed under the Corrections Management Act 2007, section 22 (Health professionals—non-therapeutic functions) for the centre.

DNA database system, for part 2.11 (ACT DNA database)—see section 94.

relevant person, for part 2.6 (Carrying out forensic procedures)—see section 48A.

responsible person, for the ACT DNA database, means the person responsible for the care, control and management of the database.

This part amends the Crimes (Forensic Procedures) Regulation 2000.

(1) A person may access information on the ACT DNA database for the purpose of, and in accordance with, an arrangement entered into under the Act, section 102 (Database information) for the provision of access to information on the database by an authorised person.

(2) A person may disclose information on the ACT DNA database—

(a) for the purpose of forensic comparison by an authorised person in the course of—

(i) a criminal investigation; or

(ii) an investigation by a police officer relating to a missing or dead person; or

(b) for the purpose of, and in accordance with, an arrangement entered into under the Act, section 102 for the provision of access to information on the database by an authorised person.

(3) In this section:

authorised person means a person who—

(a) is engaged or employed by a forensic laboratory that is accredited with the National Association of Testing Authorities of Australia; and

(b) in that capacity, provides forensic services to law enforcement officers of the Territory, the Commonwealth or a State.

(f) the Criminal Law (Forensic Procedures) Act 2007 (SA);

transgender

or intersex

substitute

taking photograph or video recording of, or impression or cast of, wound from—

• genital or anal area

• buttocks

• breasts of female or transgender or intersex person who identifies as female

transgender

or intersex

substitute

taking photograph or video recording of, or impression or cast of wound from, external part of body (other than—

• genital or anal area

• buttocks

• breasts of female or transgender or intersex person who identifies as female)

Note People mentioned in col 3 as appropriately qualified for the applicable procedure are additional to those mentioned in the Act, s 53.

DNA database system

ACT DNA database

section 80 (2) (c)

section 80 (3) (c)

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• Commonwealth

• doctor

• intersex person (see s 169B)

• police officer

• State

• the Territory

• transgender person (see s 169A (1) and (2)).

Note 3 Terms used in this regulation have the same meaning that they have in the Crimes (Forensic Procedures) Act 2000 (see Legislation Act, s 148). For example, the following terms are defined in the Crimes (Forensic Procedures) Act 2000, dict:

• ACT DNA database (see s 94A)

• appropriately qualified person (see s 13)

• forensic procedure (see s 5).

Presentation speech made in the Legislative Assembly on 2008.

Notified under the Legislation Act on 2008.

For the latest republication of amended laws, see www.legislation.act.gov.au.