(3) If the suspect is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with the legal practitioner in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
23WG Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders
(1) This section applies where:
(a) a constable intends to ask a suspect to consent to a forensic procedure; and
(b) the constable believes 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
(c) complies with the rest of this section.
(3) The constable must not ask the suspect to consent to the forensic procedure unless:
(a) an interview friend is present; or
(b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present; or
(c) the constable is a senior police officer and he or she believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the request to consent by comparison with members of the Australian community generally.
Note: Section 23YK relates to proving a waiver under paragraph (3)(b) of this section.
(4) Before asking the suspect to consent to a forensic procedure, the constable must:
(a) inform the suspect that a representative of an Aboriginal legal assistance organisation will be notified that the suspect is to be asked to consent to a forensic procedure; and
(b) notify such a representative that the suspect is to be asked to consent to a forensic procedure.
(5) The constable is not required to comply with subsection (4) if:
(a) he or she is aware that the suspect has arranged for a legal practitioner to be present while the suspect is asked to consent to the forensic procedure; or
(b) paragraph (3)(b) or (c) applies.
(6) After asking a suspect covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect’s choice and, subject to subsection (8), to do so in private.
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(7) After asking a suspect not covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must allow the suspect to communicate with the interview friend (if any), and with the suspect’s legal representative (if any), and, subject to subsection (8), to do so in private.
(8) If a suspect covered by subsection (6) or (7) is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with a legal practitioner, or the suspect’s interview friend or legal representative, in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
(9) An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the constable and the suspect if the interview friend unreasonably interferes with or obstructs the constable in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 23WJ.
23WH Constable may request suspect to consent to forensic procedure
A constable may ask a suspect to undergo a forensic procedure if the constable is satisfied as required by section 23WI.
23WI Matters to be considered by constable before requesting consent to forensic procedure
(1) The constable must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(c) the request for consent to the forensic procedure is justified in all the circumstances; and
(d) the person on whom the forensic procedure is proposed to be carried out is not a child or an incapable person.
(2) In determining whether a request is justified in all the circumstances, the constable must:
(a) if the forensic procedure has been requested by a foreign law enforcement agency—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case—balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the constable must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect’s alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(f) any other matter considered relevant to balancing those interests.
(4) Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.
23WJ Matters that suspect must be informed of before giving consent
(1) The constable must inform the suspect of the following matters:
(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by audio tape, videotape or other electronic means, or in writing, and that the suspect has a right to a copy of that record in a form provided by section 23YF;
(b) the purpose for which the forensic procedure is required;
(c) the offence in relation to which the constable wants the forensic procedure carried out;
(d) the way in which the forensic procedure is to be carried out;
(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law;
(f) that the forensic procedure will be carried out by an appropriately qualified person;
(g) if relevant, the matters specified in subsection (2);
(h) if the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—that the suspect’s interview friend may be present while the forensic procedure is carried out;
(i) that the suspect may refuse to consent to the carrying out of the forensic procedure;
(ia) the effect of section 23XZ;
(ib) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal)—the following:
(i) the name of the foreign law enforcement agency that has made the request;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;
(iii) that the forensic evidence may be used in proceedings against the suspect in the foreign country;
(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;
(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;
(vi) the content of those undertakings;
(ic) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following:
(i) the name of the international tribunal for which the request was made;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;
(iii) that the forensic evidence may be used in proceedings against the suspect in the international tribunal;
(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;
(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;
(vi) the content of those undertakings;
(j) the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable);
(k) that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and the rules that will apply to its disclosure and use under this Part.
Suspect’s right to have medical practitioner or dentist present during intimate forensic procedures
(2) The constable must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of forensic procedure) of his or her choice be present while the forensic procedure is carried out (unless the forensic procedure is a non‑intimate forensic procedure).
Failure to consent to non‑intimate forensic procedure—suspect in custody
(3) If the suspect is in custody and the forensic procedure is a non‑intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent:
(a) a senior police officer may order the carrying out of the forensic procedure under Division 4 if he or she is satisfied of the matters referred to in subsection 23WO(1); or
(b) an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
Failure to consent to intimate forensic procedure—suspect in custody
(4) If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
Exception—requests by foreign law enforcement agency
(4A) Subsections (3) and (4) do not apply if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.
Failure to consent to forensic procedure—suspect not in custody
(5) If the suspect is not in custody and is not being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
Failure to consent to forensic procedure—procedure requested by foreign law enforcement agency
(6) The constable must inform the suspect (whether or not the suspect is in custody) that if:
(a) the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and
(b) the suspect does not consent;
the Attorney‑General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.
23WK Withdrawal of consent
If a person expressly withdraws consent to the carrying out of a forensic procedure under this Part (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct) before or during the carrying out of the forensic procedure, then:
(a) the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and
(b) the forensic procedure is not to proceed except by order of a constable under Division 4 or a magistrate under Division 5.
23WL Recording of giving of information and suspect’s responses
(1) The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the suspect’s responses (if any) are tape recorded.
(2) If tape recording the giving of the information and the suspect’s responses (if any) is not practicable, the constable must ensure that a written record of the giving of the information and the suspect’s responses (if any) is made, and that a copy of the record is made available to the suspect.
Note 1: Division 9 contains provisions about making copies of material (including copies of tapes) available to the suspect.
Note 2: If a foreign law enforcement agency requests that a forensic procedure be carried out on a suspect, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).
23WLA Time for carrying out forensic procedure—suspect not in custody
(1) If a suspect who is not in custody:
(a) consents to a forensic procedure; and
(b) presents himself or herself to the investigating constable to undergo the procedure;
the procedure must be carried out as quickly as reasonably possible but in any case within the following period:
(c) if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;
(d) in any other case—4 hours after the suspect so presents himself or herself.
(2) In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which carrying out the procedure is suspended or delayed at the request of the suspect.
Division 4—Non‑intimate forensic procedures on suspect by order of senior police officer
23WM Non‑intimate forensic procedure may be carried out by order of senior police officer
(1) A person is authorised to carry out a non‑intimate forensic procedure on a suspect by order of a senior police officer under section 23WN. 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.
(2A) This Division does not authorise the carrying out of a forensic procedure on a suspect if the procedure has been requested by:
(a) a foreign country or international tribunal; or
(b) a foreign law enforcement agency.
(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, in accordance with a constable’s order under section 23WN, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate 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.
23WN Circumstances in which senior police officer may order non‑intimate forensic procedures
A senior police officer may order the carrying out of a non‑intimate forensic procedure on a suspect who is in custody if:
(a) the suspect has been asked under Division 3 to consent to the carrying out of the forensic procedure; and
(b) the suspect has not consented; and
(c) the senior police officer is satisfied as required by section 23WO.
23WO Matters to be considered by senior police officer before ordering forensic procedure
(1) The senior police officer must be satisfied on the balance of probabilities that:
(a) the suspect is in the lawful custody of a constable; and
(b) there are reasonable grounds to believe that the suspect committed a relevant offence; and