(i) a crime within the jurisdiction of the ICC; or
(ii) a War Crimes Tribunal offence;
was, or is reasonably suspected of having been, committed; or
(b) on or within the body of the victim, or a person reasonably suspected of being a victim, of a prescribed offence; or
(c) on anything worn or carried by the victim at the time when a prescribed offence was, or is reasonably suspected of having been, committed; or
(d) on or within the body of any person, on any thing, or at any place, associated with the commission of a prescribed offence.
missing persons index means an index of DNA profiles derived from forensic material of:
(a) persons who are missing; and
(b) volunteers who are relatives by blood of missing persons.
National Criminal Investigation DNA Database or NCIDD means the database that is known as the National Criminal Investigation DNA Database and that is managed by the Commonwealth.
NCIDD: see National Criminal Investigation DNA Database.
serious offenders index means an index of DNA profiles derived from forensic material taken from:
(a) serious offenders in accordance with Division 6A, or under a corresponding law of a participating jurisdiction; and
(b) suspects who have been convicted of a prescribed offence or an offence under a corresponding law of a participating jurisdiction.
State/Territory DNA database system means a database (whether in computerised or other form and however described) held by, or on behalf of, a participating jurisdiction for the purposes of a corresponding law.
Note: See also subsection (2).
statistical index means an index of information that:
(a) is obtained from the analysis of forensic material taken from persons in accordance with this Part or under a corresponding law of a participating jurisdiction; and
(b) has been compiled for statistical purposes; and
(c) cannot be used to discover the identity of persons from whom the forensic material was taken.
suspects index means an index of DNA profiles derived from forensic material taken from suspects in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction.
unknown deceased persons index means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown.
volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken in accordance with Division 6B or under a corresponding law of a participating jurisdiction from volunteers who (or whose parents or guardians) have been informed that information obtained will be used only for a purpose specified to them under paragraph 23XWR(2)(ba).
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volunteers (unlimited purposes) index means an index of DNA profiles derived from forensic material taken:
(a) from volunteers who (or whose parents or guardians) have been informed under paragraph 23XWR(2)(c) that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under this Division, in accordance with Division 6B, or under a corresponding law of a participating jurisdiction; and
(b) from deceased persons whose identity is known.
(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.
23YDACA Integration of Commonwealth DNA database system and State/Territory DNA database systems
(1) The whole or a part of the Commonwealth DNA database system, or information obtained from the Commonwealth DNA database system, may be integrated (whether electronically or otherwise) with:
(a) the whole or a part of one or more State/Territory DNA database systems; or
(b) information obtained from one or more State/Territory DNA database systems;
to form part of NCIDD.
(2) A participating jurisdiction, or an authority of a participating jurisdiction, may access NCIDD to the extent that it consists of:
(a) the whole or a part of the State/Territory DNA database system of the participating jurisdiction; or
(b) information obtained from the State/Territory DNA database system of the participating jurisdiction;
but only if the participating jurisdiction, or the authority of the participating jurisdiction, is required or authorised by or under a law of the participating jurisdiction to access the State/Territory DNA database system of the participating jurisdiction.
(3) No part of a State/Territory DNA database system, and no information obtained from a State/Territory DNA database system, forms part of the Commonwealth DNA database system by reason only of any integration referred to in subsection (1).
(4) No part of the Commonwealth DNA database system, and no information obtained from the Commonwealth DNA database system, forms part of a State/Territory DNA database system by reason only of any integration referred to in subsection (1).
(5) The existence of the Commonwealth DNA database system or a State/Territory DNA database system is not affected by reason only of any integration referred to in subsection (1).
23YDAD Supply of forensic material for purposes of DNA database
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct results in the forensic material taken from any person, and which is required to be destroyed, under this Part or under a corresponding law of a participating jurisdiction, to be supplied to another person; and
(c) the person is reckless as to whether the forensic material is required to be destroyed and the supply of the material to the other person; and
(d) the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) that conduct results in the supply of forensic material to any person and the person is reckless as to that result; and
(c) the person is reckless as to whether the forensic material is not excluded forensic material; and
(d) the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(3) In this section:
excluded forensic material means forensic material:
(a) found at a crime scene; or
(b) taken from a suspect in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction; or
(c) taken from a serious offender or a volunteer in accordance with Division 6A or 6B or under a corresponding law of a participating jurisdiction; or
(d) taken from the body of a deceased person; or
(e) that is from the body of a missing person; or
(f) taken from a volunteer who is a relative by blood of a deceased or missing person.
23YDAE Use of information on Commonwealth DNA database system or NCIDD
(1) A person commits an offence if the person accesses information stored on the Commonwealth DNA database system or NCIDD otherwise than in accordance with this section.
Penalty: Imprisonment for 2 years.
(2) A person may access information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:
(a) the purpose of forensic comparison permitted under section 23YDAF (permissible matching);
(b) the purpose of making the information available, in accordance with the regulations, to the person to whom the information relates;
(c) the purpose of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;
(d) the purpose of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;
(da) the purpose of assisting a foreign country or international tribunal to decide whether to make a request;
(e) the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;
(f) the purpose of a coronial inquest or inquiry;
(g) the purpose of an investigation of a complaint by the Information Commissioner of the Commonwealth or of a participating jurisdiction.
(2A) A person may access information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).
(3) This section does not apply to information that cannot be used to discover the identity of any person.
23YDAF Permissible matching of DNA profiles
(1) A matching of a DNA profile on an index of the Commonwealth DNA database system specified in column 1 of the following table with a DNA profile on another index of the system specified in column 2, 3, 4, 5, 6, 7 or 8 of the table is not permitted by this Part if:
(a) “no” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the index specified in column 1; or
(b) “only if within purpose” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index specified in column 1 and the matching is carried out for a purpose other than a purpose for which the DNA profile placed on the volunteers (limited purposes) index specified in column 1 was so placed.
crime scene yes yes only if within purpose yes yes yes yes
suspects yes yes only if within purpose yes yes yes yes
volunteers (limited purposes) only if within purpose only if within purpose only if within purpose only if within purpose only if within purpose only if within purpose only if within purpose
volunteers (unlimited purposes) yes yes only if within purpose yes yes yes yes
serious offenders yes yes only if within purpose yes yes yes yes
missing persons yes yes only if within purpose yes yes yes yes
unknown deceased persons yes yes only if within purpose yes yes yes yes
(2) A person commits an offence if:
(a) the person’s conduct causes the matching that is not permitted by this Part of a DNA profile on an index of the Commonwealth DNA database system with a DNA profile on the same or another index of the Commonwealth DNA database system; and
(b) the person is reckless as to any such matching of profiles.
Penalty: Imprisonment for 2 years.
(3) This section does not make it an offence for conduct to cause a matching that is not permitted by this Part if the matching is solely for the purposes of administering the Commonwealth DNA database system.
Note: A defendant bears the evidential burden in relation to the matter in subsection (3)—see subsection 13.3(3) of the Criminal Code.
23YDAG Recording, retention and removal of identifying information on Commonwealth DNA database system
(1) A person commits an offence if:
(a) the person’s conduct causes any identifying information about a person obtained from forensic material taken from the person under this Part to be recorded or retained in the Commonwealth DNA database system at any time after this Part requires the forensic material to be destroyed; and
(b) the person is reckless as to the recording or retention or whether the forensic material is required to be destroyed.
Penalty: Imprisonment for 2 years.
(2) The responsible person commits an offence if he or she does not 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 Commonwealth DNA database system was derived, is removed from the system as soon as practicable after the end of the identifying period for the profile.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible person.
(3) The responsible person commits an offence if he or she does not ensure that any identifying information relating to a DNA profile of an offender on the serious offenders index of the Commonwealth DNA database system is removed from the system as soon as practicable after becoming aware that the offender has been pardoned or acquitted of the offence concerned or if the conviction has been quashed.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible person.
(4) In this section:
identifying information means any information 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 the following:
(a) except as provided by paragraphs (b) and (c), the period of 12 months after the DNA profile is placed on the Commonwealth DNA database system;
(b) if the DNA profile is derived from forensic material taken from a volunteer—such period after the DNA profile is placed on the Commonwealth DNA database system as is agreed by 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);
(c) if the DNA profile is derived from forensic material taken from a deceased person (not being a person who was a volunteer) whose identity is known—such period as the Commissioner orders the responsible person to retain identifying information relating to the profile.
Division 9—General provisions relating to operation of this Part
23YDA Interpreters
(1) Where:
(a) a constable proposes to take an action listed in subsection (2); and
(b) the constable believes on reasonable grounds that the suspect, offender or volunteer is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in the English language;
the constable must, before taking the proposed action, arrange for the presence of an interpreter, and defer taking the proposed action until the interpreter is present.
(2) The actions are as follows:
(a) asking a suspect to consent to a forensic procedure (Division 3), asking an offender to consent to a forensic procedure (Division 6A) or asking a volunteer to consent to a forensic procedure (Division 6B);
(b) ordering the carrying out of a non‑intimate forensic procedure on a suspect who is in custody (Division 4) or on an offender who is in custody (Division 6A);
(c) applying to a magistrate for a final order or an interim order for the carrying out of a forensic procedure on a suspect (Division 5), 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;
(d) cautioning a suspect, offender or volunteer (Division 6);
(e) carrying out, or arranging for the carrying out of, a forensic procedure on a suspect, offender or volunteer (Division 6);
(f) giving a suspect, offender or volunteer an opportunity to view a video recording made under this Part (section 23YF).
23YE Powers etc. of legal representatives and interview friends
(1) A request or objection that may be made by a suspect or offender under this Part may be made on the suspect’s or offender’s behalf by:
(a) in any case—the suspect’s or offender’s legal representative; or
(b) if the suspect or offender is a child or an incapable person—an interview friend of the suspect or offender; or
(c) if the investigating constable believes on reasonable grounds that the suspect or offender is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect or offender.
(2) If:
(a) a provision of this Part requires a suspect or offender to be informed of a matter; and
(b) an interview friend or legal representative of the suspect is present when the suspect or offender is to be so informed; and
(c) the suspect or offender is so informed in a language (including in sign language or braille) in which the suspect’s or offender’s interview friend or legal representative is not able to communicate with reasonable fluency;
the interview friend or legal representative must also be informed of the matter in a language in which the interview friend or legal representative is able to communicate with reasonable fluency.
23YF Obligation of investigating constables relating to tape recordings
(1) If a tape recording is made as required by a provision of this Part, the investigating constable must ensure that:
(a) if an audio recording only or a video recording only is made—the recording, or a copy of it, is made available to the suspect, offender or volunteer; and
(b) if both an audio recording and a video recording are made:
(i) the audio recording, or a copy of it, is made available to the suspect, offender or volunteer; and
(ii) the suspect, offender or volunteer is given an opportunity to view the video recording; and
(c) in any case, if a transcript of the tape recording is made—a copy of the transcript is made available to the suspect, offender or volunteer.
Note 1: If a forensic procedure is carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to that country or tribunal: see section 23YQB.