(c) the taking of a sample from a nail or under a nail;
(d) the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(f) the taking of a hand print, finger print, foot print or toe print;
(g) 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, in the case of a female or a transgender person who identifies as a female, the breasts.
offence does not include an offence against a law of a Territory other than the Australian Capital Territory.
Note: Subsection 3(1) provides that Territory does not include the Northern Territory.
offender means:
(a) a serious offender; or
(b) a prescribed offender.
order means:
(a) in relation to a suspect—an order of a magistrate under section 23WS or interim order of a magistrate under section 23XA; or
(b) in relation to an offender—an order of a judge or magistrate under section 23XWO; or
(c) in relation to a volunteer—an order of a magistrate under section 23XWU.
participating jurisdiction is defined in section 23YUA.
police station includes:
(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.
prescribed offence means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 2 or more years.
prescribed offender means a person who is under sentence for a prescribed offence.
Note: For the meaning of under sentence, see subsection (8).
prison medical officer means, in relation to a prison or other place of detention, a person appointed or acting as medical officer for the prison or other place of detention.
recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 of New South Wales, or under the corresponding provisions of a law of another Australian jurisdiction.
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(i) the indictable offence in relation to which the person is a suspect; or
(ii) any other indictable offence arising out of the same circumstances; or
(iii) any other indictable offence in respect of which the evidence likely to be obtained as a result of a proposed forensic procedure carried out on the suspect is likely to have probative value; or
(b) in relation to an offender—the offence for which the offender was convicted and to which an application for an order authorising a forensic procedure relates.
request, by a foreign country, international tribunal or foreign law enforcement agency, means:
(a) in the case of a foreign country—a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987, by the country; or
(b) in the case of an international tribunal:
(i) a request referred to in section 76A of the International Criminal Court Act 2002, if the tribunal is the ICC; or
(ii) a request referred to in section 32B of the International War Crimes Tribunals Act 1995, if the tribunal is a War Crimes Tribunal; or
(c) in the case of a foreign law enforcement agency—a request, to which Subdivision B of Division 9A applies, by the agency.
responsible person, in relation to the Commonwealth DNA database system, means the person responsible for the care, control and management of the system.
sample has a meaning affected by subsection (3).
senior police officer means a constable of the rank of sergeant or higher.
serious offence means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 5 or more years.
serious offender means a person who is under sentence for a serious offence.
Note: For the meaning of under sentence, see subsection (8).
suspect, in relation to an indictable offence, means:
(a) a person whom a constable suspects on reasonable grounds has committed the indictable offence; or
(b) a person charged with the indictable offence; or
(c) a person who has been summonsed to appear before a court in relation to the indictable offence; or
(d) a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has:
(i) started investigating whether the person has committed an indictable offence; or
(ii) started proceedings against the person for an indictable offence.
tape recording means audio recording, video recording or recording by other electronic means.
transgender person is defined in subsection (6).
volunteer is defined in section 23XWQ.
War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995.
War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995.
(2) In this Part, a person is in custody if he or she is in the lawful custody of a constable.
(3) In this Part, a sample taken from a person includes a sample taken from the person that consists of matter from another person’s body.
(4) In this Part, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.
Destroy forensic material or information
(5) For the purposes of this Part, a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.
Transgender persons
(6) In this Part, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex;
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
(7) In this Part (other than subsection (6)), a reference:
(a) to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies; and
(b) to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.
(8) For the purposes of the definitions of prescribed offender and serious offender, a person is under sentence in relation to a prescribed offence or a serious offence if the person:
(a) is serving a sentence in a prison (including a gaol, lock‑up or other place of detention); or
(b) is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20AB(1) as a sentence or order that may be passed or made by a court, under that section, in respect of a person convicted of an offence against the law of the Commonwealth; or
(c) is released under a parole order made under subsection 19AL(1) or (1A), paragraph 19AL(2)(b) or subsection 19AL(2A), (6) or (7); or
(d) is released on a licence granted under section 19AP; or
(e) being a child or young person, is serving a sentence of a kind, or subject to an order of a kind, provided for in section 20C as a sentence or order that, under that section, may be imposed on the child or young person who in a State or Territory is convicted of an offence against the law of the Commonwealth; or
(f) is subject to an order made under Division 9 of Part IB; or
(g) is convicted and conditionally released as provided for in subsection 20(1), either:
(i) in the case of paragraph 20(1)(a)—without sentence being passed; or
(ii) in the case of paragraph 20(1)(b)—after sentence has been passed.
Requests by a foreign country, international tribunal or foreign law enforcement agency
(9) The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence.
23WB Interview friends
(1) This section lists the people who may act as an interview friend of a suspect, offender or volunteer for the purposes of a provision of this Part referring to an interview friend. Different people may act as interview friends of a suspect, offender or volunteer for the purposes of different provisions of this Part.
(2) Where the suspect, offender or volunteer is a child or an incapable person, the following people may act as interview friends:
(a) a parent, guardian or other person chosen by, or acceptable to, the suspect, offender or volunteer;
(b) a legal practitioner acting for the suspect, offender or volunteer;
(c) if the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located who is chosen by, or acceptable to, the suspect, offender or volunteer;
(d) if there is no available person who is covered by paragraph (a), (b) or (c)—an independent person who is not a constable.
(3) Where the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the following people may act as interview friends:
(a) a relative or other person chosen by the suspect, offender or volunteer;
(b) a legal practitioner acting for the suspect, offender or volunteer;
(c) if there is no available person who is covered by paragraph (a) or (b)—a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
(4) A suspect, offender or volunteer who has a legal representative may also have an interview friend who is not the suspect’s, offender’s or volunteer’s legal representative.
Division 2—Authority and time limits for forensic procedures on suspects: summary of rules
23WC How forensic procedures may be authorised in different circumstances
The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.
1 adult not in custody with informed consent under Division 3by order of a magistrate under Division 5 with informed consent under Division 3by order of a magistrate under Division 5
2 adult in custody with informed consent under Division 3by order of a magistrate under Division 5 with informed consent under Division 3by order of a senior police officer under Division 4by order of a magistrate under Division 5
3 incapable person (whether or not in custody) by order of a magistrate under Division 5 by order of a magistrate under Division 5
4 child at least 10 but under 18 (whether or not in custody) by order of a magistrate under Division 5 by order of a magistrate under Division 5
23WCA Time limits for carrying out forensic procedures
The following table sets out in general terms the time limits that apply to the carrying out of a forensic procedure depending on the status of the suspect and the source of the authority to carry out the procedure.
Time limits for forensic procedures
Suspect’s status Procedure with suspect’s consent (Division 3) Procedure by order of a constable (Division 4) Procedure by order of a magistrate (Division 5)
1 Child or incapable person not in custody Not applicable Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
2 Aboriginal person or Torres Strait Islander (not a child or incapable person) not in custody Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23WLA(2) (see section 23WLA). Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
3 Suspect (not covered by item 1 or 2) not in custody Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23WLA(2) (see section 23WLA). Not applicable Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
4 Child or incapable person in custody Not applicable Not applicable In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).
5 Aboriginal person or Torres Strait Islander (not a child or incapable person) in custody Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)). Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)). In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).
6 Suspect (not covered by item 4 or 5) in custody Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)). Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)). In addition to the detention period permitted under Part IC, suspect may be detained for up to 4 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).
Division 3—Forensic procedures on suspect by consent
23WD Forensic procedure may be carried out with informed consent of suspect
(1) A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
(2) This Division does not authorise the carrying out of a forensic procedure on a suspect who is:
(a) a child; or
(b) an incapable person.
(3) This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.
Note: If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.
(4) Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, with the informed consent of the suspect, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delay associated with carrying out the forensic procedure, operates to extend the investigation period provided for by Part IC.
Note: By contrast, the carrying out of a forensic procedure in accordance with a magistrate’s order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.
23WE People who cannot consent to forensic procedures
(1) A child cannot consent to a forensic procedure.
(2) An incapable person cannot consent to a forensic procedure.
23WF Informed consent to forensic procedures—general
(1) This section applies where:
(a) a constable intends to ask a suspect to consent to a forensic procedure; and
(b) the constable does not believe on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.
(2) A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:
(a) asks the suspect to consent to the forensic procedure under section 23WH; and
(b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and
(d) gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect’s choice and, subject to subsection (3), to do so in private.