(a) the offender has been asked under section 23XWH to consent to the carrying out of the forensic procedure; and
(b) the offender has not consented; and
(c) the constable has taken into account the matters set out in section 23XWL.
23XWL Matters to be considered by constable
In determining whether to make an order under section 23XWK, the constable is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the offence committed by the offender; and
(d) whether the carrying out of the forensic procedure without consent is justified in all the circumstances.
23XWM Recording of giving of information and consent
(1) The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the offender’s responses (if any) are tape recorded.
(2) If tape recording the giving of the information and the offender’s responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the offender’s responses (if any) is made; and
(b) a copy of the record is made available to the serious offender.
Note: Division 9 contains provisions about making copies of material (including tapes) available to the serious offender.
23XWN Record of constable’s order
(1) The constable must, at the time of, or as soon as practicable after, making an order under section 23XWK, make a record of:
(a) the order; and
(b) the date and time when the order was made; and
(c) the reasons for making it, and sign the record.
(2) The constable must ensure that a copy of the record is made available to the offender as soon as practicable after the record is made.
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.
23XWO Judge or magistrate order for carrying out forensic procedure on offender
(1) An authorised applicant may apply to any judge or magistrate for an order 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).
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(2) An authorised applicant may apply to any judge or magistrate for an order for the carrying out of a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender.
(3) An application under subsection (1) or (2) must be accompanied by an affidavit by the authorised applicant dealing with the matters referred to in subsection (7).
(4) An authorised applicant may apply to any judge or magistrate for an order for the taking of the fingerprints under this Division of a child or an incapable person who is a prescribed offender.
(5) An authorised applicant may make an application under this section to the judge or magistrate that is sentencing an offender or to any other judge or magistrate at a later time.
(6) A judge or magistrate may order the carrying out of a forensic procedure under this Division if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.
(7) In determining whether to make an order under this section, a judge or magistrate is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the commission of the offence by the offender; and
(d) whether the carrying out of the forensic procedure is justified in all the circumstances.
(8) An order under this section takes effect immediately. However, the person who conducts any analysis of forensic material obtained as a result of carrying out the forensic procedure on an offender must not disclose the results of the analysis:
(a) until the expiration of any appeal period or after the final determination of any appeal in relation to the offence concerned, whichever is the later; or
(b) if the conviction is quashed.
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.
23XWP Carrying out forensic procedure following conviction
(1) If:
(a) an offender is in prison or another place of detention; and
(b) a judge or magistrate orders the carrying out of a forensic procedure under this Division on the offender;
the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.
(2) In subsection (1), Division 6 person means a person who, under Division 6 as applied by section 23XWE, may carry out the forensic procedure.
(3) If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.
(4) If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender commits an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.
Penalty: Imprisonment for 12 months.
Note: A defendant bears the evidential burden in relation to the exception of reasonable excuse—see subsection 13.3(3) of the Criminal Code.
Division 6B—Carrying out of forensic procedures on volunteers and certain other persons
23XWQ Carrying out of forensic procedures on volunteers
(1) In this Part:
volunteer means a person:
(a) who volunteers to a constable to undergo a forensic procedure; or
(b) in the case of a child or incapable person—whose parent or guardian volunteers on the child or incapable person’s behalf to a constable that the child or incapable person undergo a forensic procedure.
(2) A person (the authorised person) is authorised to carry out a forensic procedure:
(a) on a volunteer other than a child or an incapable person—with the informed consent of the volunteer given in accordance with section 23XWR; or
(b) on a volunteer who is a child or an incapable person:
(i) with the informed consent of the parent or guardian of the volunteer given in accordance with section 23XWR or by order of a magistrate under section 23XWU; and
(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
(ii) after the authorised person has informed the child or incapable person that, even though consent has been given or an order made, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out.
(3) This section only authorises a person to carry out a forensic procedure if the procedure is necessary, or incidental to, the carrying out of an AFP function.
(4) This section does not authorise a person to carry out a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the forensic procedure.
(5) Division 6 applies to the carrying out of a forensic procedure under this Division as if the references to a suspect in that Division were references to a volunteer referred to in this section. A person is authorised by this section to carry out a forensic procedure on a volunteer in accordance with Division 6 as so applied and not otherwise.
23XWR Informed consent of volunteer or parent or guardian of volunteer
(1) A volunteer, or 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 (not being a constable) after a constable informs the volunteer, parent or guardian, in accordance with the regulations, of the following matters:
(a) the way in which the forensic procedure is to be carried out;
(b) that the volunteer is under no obligation to undergo the forensic procedure;
(c) that the forensic procedure may produce evidence that might be used in a court of law;
(d) to the extent that they are relevant, the matters specified in subsection (2);
(e) that the volunteer, parent or guardian may consult a legal practitioner of the volunteer’s, parent’s or guardian’s choice before deciding whether or not to consent to the forensic procedure;
(f) that the volunteer, parent or guardian may at any time withdraw consent to:
(i) the volunteer undergoing the forensic procedure; or
(ii) retention of the forensic material taken; or
(iii) retention of information obtained from the analysis of that material.
(2) The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:
(a) that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the Commonwealth DNA database system;
(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
(ba) if the information is placed on the volunteers (limited purposes) index—the purpose for which the information is placed on the index and that the information may only be used for that purpose;
(c) if the information is placed on the volunteers (unlimited purposes) index—that the information may be used for the purposes of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under Division 8A;
(d) that information placed on the Commonwealth DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;
(da) if the volunteer undergoes 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 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;
(db) if the volunteer undergoes 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 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;
(e) any other matters prescribed by the regulations.
23XWS Recording of giving of information and consent
(1) The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the volunteer’s or volunteer’s parent’s or guardian’s responses (if any) are tape recorded.
(2) If tape recording the giving of information and the volunteer’s, parent’s or guardian’s responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the volunteer’s, parent’s or guardian’s responses (if any) is made; and
(b) a copy of the record is made available to the volunteer, parent or guardian.
Note 1: Division 9 contains provisions about making copies of material (including copies of tapes) available to volunteers.
Note 2: If a foreign law enforcement agency requests that a forensic procedure be carried out on a volunteer, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).
23XWT Withdrawal of consent
(1) If a volunteer, or parent or guardian of the volunteer, expressly withdraws consent to the carrying out of a forensic procedure under this Division (or if the withdrawal of such consent can reasonably be inferred from the volunteer’s, parent’s or guardian’s conduct) before or during the carrying out of the forensic procedure:
(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 (in the case of a child or incapable person) by order of a magistrate under section 23XWU.
(2) If:
(a) a forensic procedure is carried out on a volunteer under this Division; and
(b) after the procedure is carried out, the volunteer, or the parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or of information obtained from the analysis of that material;
then, subject to any order made under section 23XWV, the forensic material and any information obtained from analysis of the material is to be destroyed as soon as practicable after the consent is withdrawn.
(3) A constable may request, but cannot require, a parent or guardian who withdraws consent to the carrying out of a forensic procedure under this Division to confirm the withdrawal of consent in writing.