Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Amendments commencing on day after Royal Assent
1 Subsection 23WA(1)
Insert:
"accredited laboratory" means:
(a) a forensic laboratory accredited by the National Association of Testing Authorities, Australia; or
(b) a forensic laboratory that is of a kind prescribed by the regulations for the purposes of this paragraph.
2 Subsection 23WA(1) (definition of Commissioner )
Omit "staff member", substitute "AFP appointee (within the meaning of the Australian Federal Police Act 1979 )".
3 Subsection 23WA(1) (definition of informed consent )
Omit "section 23WF", substitute "sections 23WF, 23WG, 23XWG and 23XWR".
4 Subsection 23WA(1) (paragraph (b) of the definition of intimate forensic procedure )
After "blood", insert "(other than by a finger prick)".
5 Subsection 23WA(1) (paragraph (c) of the definition of intimate forensic procedure )
Repeal the paragraph.
6 Subsection 23WA(1) (after paragraph (a) of the definition of non-intimate forensic procedure )
Insert:
(aa) the taking of a sample of blood by a finger prick;
(ab) the taking of a sample of saliva, or a sample by buccal swab;
7 Subsection 23WA(1) (definition of senior constable )
Repeal the definition.
8 Subsection 23WA(1)
Insert:
"senior police officer" means a constable of the rank of sergeant or higher.
9 Section 23WC (table item 2)
Omit "senior constable", substitute "senior police officer".
10 Paragraph 23WG(3)(c)
Omit "senior constable", substitute "senior police officer".
11 Paragraph 23WJ(3)(a)
Omit "constable", substitute "senior police officer".
12 Division 4 of Part ID (heading)
Repeal the heading, substitute:
Division 4 -- Non-intimate forensic procedures on suspect by order of senior police officer
13 Section 23WM (heading)
Repeal the heading, substitute:
23WM Non-intimate forensic procedure may be carried out by order of senior police officer
14 Subsection 23WM(1)
Omit "senior constable", substitute "senior police officer".
15 Section 23WN (heading)
Repeal the heading, substitute:
23WN Circumstances in which senior police officer may order non-intimate forensic procedures
16 Section 23WN
Omit "senior constable" (wherever occurring), substitute "senior police officer".
17 Section 23WO (heading)
Repeal the heading, substitute:
23WO Matters to be considered by senior police officer before ordering forensic procedure
18 Section 23WO
Omit "senior constable" (wherever occurring), substitute "senior police officer".
19 Section 23WP (heading)
Repeal the heading, substitute:
23WP Record of senior police officer's order
20 Subsections 23WP(1) and (2)
Omit "senior constable", substitute "senior police officer".
21 Paragraphs 23WR(a) and (b)
After "procedure", insert "(whether or not consent has been sought)".
22 Paragraph 23XL(b)
Repeal the paragraph, substitute:
(b) the sample is taken using the least painful technique known and available to the person.
23 Section 23XM (table item 2)
After "blood", insert "(other than by a finger prick)".
24 Section 23XM (table item 3)
Repeal the item.
25 Section 23XM (after table item 9)
Insert:
|
9A |
the taking of a sample of blood by a finger prick |
medical practitioner nurse constable appropriately qualified person |
no |
|
9B |
the taking of a sample of saliva, or a sample by buccal swab |
medical practitioner dentist dental technician nurse constable appropriately qualified person |
no |
26 Subsection 23XN(1)
Omit ", a sample of saliva, a buccal swab".
27 Section 23XU
Repeal the section, substitute:
23XU Samples--sufficient material to share
(1) This section applies if:
(a) a sample is taken from a suspect under this Part; and
(b) the suspect requests the investigating constable that the sample be shared; and
(c) there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.
(2) The investigating constable must invite the suspect to nominate an accredited laboratory to which a part of the material sufficient for analysis will be provided on behalf of the suspect.
(3) If the suspect nominates an accredited laboratory, the investigating constable must ensure that:
(a) a part of the material sufficient for analysis is provided to that laboratory, on behalf of the suspect, within the period of 28 days beginning on the day of the nomination; and
(b) reasonable care is taken to ensure that the suspect's part of the material is protected and preserved until it is provided to that laboratory.
Note: Division 9 contains provisions about making material available to the suspect.
(4) The suspect must bear the costs in relation to any analysis of that part of the material provided to that laboratory.
28 Subsection 23XUA(2)
Omit "request that a person of his or her", substitute "request the investigating constable that a person (the attendee ) of the suspect's".
29 After subsection 23XUA(2)
Insert:
(2A) The investigating constable must then inform the suspect that the attendee may be directed by the person (the analyst ) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.
30 Subsection 23XUA(3)
Omit "The person chosen", substitute "Subject to this section, the attendee".
31 Subsection 23XUA(3)
Omit "person responsible for analysing the material", substitute "analyst".
32 At the end of section 23XUA
Add:
(4) The analyst may give instructions to the attendee relating to the analysis of the material.
(5) The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction.
(6) If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction.
(7) The attendee commits an offence if:
(a) the attendee is given a direction under subsection (5); and
(b) the attendee fails to comply with the direction.
Penalty: 30 penalty units.
(8) An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
33 Section 23XW
Repeal the section, substitute:
If:
(a) material from a sample taken from a suspect is analysed in the investigation of the offence; and
(b) before or after the analysis, the suspect has requested the investigating constable that a copy of the results of any analysis be provided to the suspect;
then the investigating constable must ensure that, within 14 days of the analysis or of the request (whichever is the later):
(c) a copy of the results of the analysis is provided to the suspect; and
(d) if the DNA profile derived from that material has been matched, as part of the investigation of the offence, under section 23YDAF with a DNA profile placed on the crime scene index in relation to the offence--the suspect is informed in writing of that match.
34 Subsection 23XWB(1)
Repeal the subsection, substitute:
Intimate forensic procedure to which Division applies
(1) This Division applies to an intimate forensic procedure that is the taking of a sample of blood (other than by a finger prick).
35 At the end of subsection 23XWB(2)
Add:
; (c) the taking of a sample of blood by a finger prick;
(d) the taking of a sample of saliva, or a sample by buccal swab.
36 At the end of subsection 23XWC(1)
Add:
; or (c) by order of a judge or magistrate under section 23XWO.
37 Subsection 23XWC(3)
After "by order of a", insert "judge or".
38 Paragraph 23XWD(b)
After "by order of a", insert "judge or".
39 Subsection 23XWE(1)
Repeal the subsection, substitute:
(1) Division 6 applies in relation to the carrying out under this Division of a forensic procedure on an offender. For this purpose:
(a) references in Division 6 to the suspect are taken to be references to the offender; and
(b) references in Subdivision F of Division 6 to the investigating constable are taken to be references to the Commissioner.
Note: By applying Division 6, sections 23XJ (about use of force in carrying out forensic procedures) and 23XK (about forensic procedures not being carried out in a cruel, inhuman or degrading manner) apply to the carrying out of a forensic procedure under this Division.
40 Paragraph 23XWL(c)
Repeal the paragraph.
41 After section 23XWN
Insert:
23XWNA Circumstances in which judge or magistrate may order forensic procedure
A judge or magistrate may, under section 23XWO, order the carrying out of a forensic procedure on an offender if:
(a) the offender is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(b) the offender is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(c) under section 23WE, the offender cannot consent to the forensic procedure.
42 Subsection 23XWO(1)
Omit "directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on the serious offender", substitute "for the carrying out of an intimate forensic procedure, or a non-intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person)".
43 Paragraph 23XWO(7)(c)
Repeal the paragraph.
44 After section 23XWO
Insert:
23XWOA Securing the presence of offender at hearing--offender in custody
(1) If:
(a) an application is made under section 23XWO to a judge or magistrate for an order under that section for the carrying out of a forensic procedure on an offender; and
(b) the offender is in custody or is otherwise detained under a law of the Commonwealth, a State or a Territory ( original custody );
the judge or magistrate may, on the application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody ( temporary custody ) of the constable for the hearing of the application.
(2) If the judge or magistrate refuses to make the order under section 23XWO, the constable given temporary custody of the offender must return the offender to the place of original custody without delay.
(3) If the judge or magistrate makes the order under section 23XWO, the judge or magistrate may:
(a) order the constable given temporary custody of the offender:
(i) to convey the offender to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to that constable; and
(ii) to return the offender to the place of original custody without delay after the procedure is carried out; or
(b) order the constable given temporary custody of the offender to return the offender to the place of original custody without delay.
23XWOB Securing the presence of offender at hearing--offender not in custody
(1) If:
(a) an application is made under section 23XWO to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender; and
(b) the offender is neither in custody nor detained under a law of the Commonwealth, a State or a Territory;
the judge or magistrate may, on the application of a constable:
(c) issue a summons for the appearance of the offender at the hearing of the application; or
(d) issue a warrant for the arrest of the offender for the purpose of bringing the offender before the judge or magistrate for the hearing of the application.
(2) An application for a summons under subsection (1) must be:
(a) made by information on oath or affirmation; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The judge or magistrate may issue a summons only if satisfied:
(a) that the issue of the summons is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO; or
(b) that the issue of the summons is otherwise justified.
(4) An application for a warrant under subsection (1) must be:
(a) made by information on oath or affirmation; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5) The judge or magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO, and that the issue of a summons would not ensure that appearance; or
(b) that the offender might destroy evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is otherwise justified.
45 Paragraph 23XWP(1)(b)
Omit "offender to permit a forensic procedure to be carried out under this Division", substitute "carrying out of a forensic procedure under this Division on the offender".
46 Subsection 23XWP(3)
Omit "an offender who is not in a prison or another place of detention to permit a forensic procedure to be carried out", substitute "the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention".
47 Subsection 23XWP(4)
Omit "An offender ordered to permit the carrying out of a forensic procedure", substitute "If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender".
48 Subsection 23XWQ(2)
After "A person", insert "(the authorised person )".
49 After subparagraph 23XWQ(2)(b)(i)
Insert:
(ia) in a case where the informed consent of the parent or guardian of the volunteer is given in accordance with section 23XWR--after the constable concerned has informed the child or incapable person that, even though consent has been given, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out; and
50 Subparagraph 23XWQ(2)(b)(ii)
Omit "after the person", substitute "after the authorised person".
51 Paragraph 23XWR(2)(b)
Repeal the paragraph, substitute:
(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
52 Section 23YDAC
Before "In this", insert "(1)".
53 Section 23YDAC (definition of Commonwealth DNA database system )
Omit "containing", substitute "that is managed by the Commonwealth and that contains".
54 Section 23YDAC (paragraph (a) of the definition of Commonwealth DNA database system )
After "Commonwealth agency", insert "and, in relation to a crime scene index, in so far as it also relates to material taken or obtained by a foreign law enforcement agency (within the meaning of the Australian Crime Commission Act 2002 )".
55 Section 23YDAC (after paragraph (a) of the definition of crime scene index )
Insert:
(aa) at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been, committed; or
56 Section 23YDAC (at the end of the definition of State/Territory DNA database system )
Add:
Note: See also subsection (2).
57 Section 23YDAC (definition of volunteers (limited purposes) index )
Omit "paragraph 23XWR(2)(b)", substitute "paragraph 23XWR(2)(ba)".
58 At the end of section 23YDAC
Add:
(2) For a participating jurisdiction, the database referred to in the definition of State/Territory DNA database system in subsection (1) may be that part of NCIDD that relates to that participating jurisdiction.
59 After paragraph 23YDAE(2)(d)
Insert:
(da) the purpose of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987 ;
60 Paragraph 23YDA(1)(b)
After "suspect", insert ", offender or volunteer".
61 Paragraph 23YDA(2)(a)
After "(Division 3)", insert ", asking an offender to consent to a forensic procedure (Division 6A) or asking a volunteer to consent to a forensic procedure (Division 6B)".
62 Paragraph 23YDA(2)(b)
After "(Division 4)", insert "or on an offender who is in custody (Division 6A)".
63 Paragraph 23YDA(2)(c)
After "(Division 5)", insert ", applying to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender (Division 6A) or applying to a magistrate for an order under section 23XWU for the carrying out of a forensic procedure on a child or incapable person".
64 Paragraphs 23YDA(2)(d), (e) and (f)
After "suspect", insert ", offender or volunteer".
65 Subsection 23YG(2)
Repeal the subsection, substitute:
(2) Subject to subsection (3), material of any kind that is required by this Part to be made available to a suspect, offender or volunteer must be made available in accordance with subsection (1):
(a) within 14 days after the material comes into existence; or
(b) if the material is requested by the suspect, offender or volunteer or the suspect's, offender's or volunteer's interview friend or legal representative, within 14 days of the request.
(3) Subsection (2) does not apply to:
(a) copies of records required to be made available under subsection 23XE(5); and
(b) material required to be provided under section 23XU; and
(c) copies of results of analysis and other information required to be provided under section 23XW.
66 After paragraph 23YO(2)(d)
Insert:
(da) the purposes of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987 ;
67 After section 23YP
Insert:
23YPA Analysis of forensic material
The analysis for the Commonwealth of forensic material obtained as a result of the carrying out of a forensic procedure under this Part must be carried out in an accredited laboratory.
68 Subsection 23YQ(1)
Omit "staff member", substitute "AFP appointee".
69 Subsection 23YQ(2)
Omit " staff member ", substitute " AFP appointee ".
70 Subsection 23YUC(1)
Omit "the forensic procedure", substitute "an intimate forensic procedure".
71 Subsection 23YUC(1)
After "an order", insert "under this Part".
72 After subsection 23YUC(1)
Insert:
(1A) A person is authorised to carry out a non-intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 or a corresponding law of a participating jurisdiction, and not otherwise.
73 At the end of Division 11 of Part ID
Add:
23YUDA Arrangements with prisons or other places of detention
The Commissioner may, on behalf of the Commonwealth, enter into an arrangement with the head (however described) of a prison or other place of detention in a State or Territory in relation to the carrying out of forensic procedures under this Part on offenders who are serving sentences of imprisonment in that prison or other place of detention.
74 Saving--orders by senior constable
The amendment made by item 16 does not affect the validity of an order that is in force under section 23WN of the Crimes Act 1914 immediately before the commencement of that item.
75 Application provision
(1) The amendments made by items 22 to 26, 34, 35, 39, 48, 49, 50, 67, 70 and 72 apply in relation to the carrying out of forensic procedures starting on or after the commencement of those items.
(2) The amendments made by items 27 to 33 apply in relation to samples taken under Part ID of the Crimes Act 1914 on or after the commencement of those items.
(3) The amendments made by items 21, 40, 41, 43 and 45 to 47 apply in relation to orders made on or after the commencement of those items.
(4) The amendments made by items 42 and 44 apply in relation to applications made under section 23XWO of the Crimes Act 1914 on or after the commencement of those items.
(5) The amendment made by item 51 applies in relation to the giving of informed consent on or after the commencement of that item.
(6) The amendments made by items 53 to 55 do not affect the continuity of the Commonwealth DNA database system referred to in section 23YDAC of the Crimes Act 1914 or of the crime scene index referred to in that section.
(7) The amendments made by items 59 and 66 do not affect by implication the interpretation of sections 23YDAE and 23YO of the Crimes Act 1914 at a time before the commencement of those items.
(8) The amendments made by items 60 to 64 apply in relation to actions taken on or after the commencement of those items.
(9) The amendment made by item 65 applies in relation to material that, on or after the commencement of that item, is required by Part ID of the Crimes Act 1914 to be made available to a person.
Part 2 -- Amendments commencing on day to be fixed by Proclamation
76 Paragraphs 23WF(2)(b) and (c)
Repeal the paragraphs, substitute:
(b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and
77 Paragraph 23WG(2)(b)
Repeal the paragraph, substitute:
(b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and
78 Paragraph 23XWG(1)(b)
Repeal the paragraph, substitute:
(b) informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and
79 Subsection 23XWR(1)
After "a constable informs the volunteer, parent or guardian", insert ", in accordance with the regulations,".
80 Application provision
The amendments made by this Part apply in relation to the giving of informed consent on or after the commencement of this Part.