Note 2: If a forensic procedure is carried out as a result of a request by a foreign law enforcement agency, a copy of anything made may also be provided to the foreign law enforcement agency: see subsections 23YQD(3) and (4).
(2) Where an investigating constable is required to ensure that a suspect, offender or volunteer is given an opportunity to view a video recording made under this Part, the investigating constable must ensure that the same opportunity is given to:
(a) in any case—the suspect’s, offender’s or volunteer’s legal representative; and
(b) if the suspect, offender or volunteer is a child or an incapable person—an interview friend of the suspect, offender or volunteer; and
(c) if the investigating constable believes on reasonable grounds that the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect, offender or volunteer.
(3) If section 23YD requires forensic material taken from a suspect, offender or volunteer by a forensic procedure to be destroyed, the investigating constable must ensure that any video recording of the carrying out of the forensic procedure is also destroyed.
23YG Material required to be made available to suspect, offender or volunteer
(1) Material from samples, copies, or any other material, that must be made available to a suspect, offender or volunteer under this Part:
(a) may be sent to the suspect, offender or volunteer at his or her last known address (if any), or to the suspect’s, offender’s or volunteer’s legal representative (if any) at his or her last known address; or
(b) if there is no known address as mentioned in paragraph (a)—may be made available for collection by the suspect, offender or volunteer at the police station where the investigating constable was based at the time the forensic procedure was carried out.
(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.
23YH No charge to be made for giving material etc. to suspects, offenders and volunteers
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If a provision of this Part requires material of any kind to be given to a suspect, offender or volunteer, or an opportunity to view a video recording to be given to a suspect, offender or volunteer, the material or the opportunity to view the video must be given without charge.
23YI Proof of belief or suspicion
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that a constable had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Part.
23YJ Proof of impracticability
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that it was not practicable to do something required by this Part to be done if practicable.
23YJA Proof that time should be disregarded
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that any particular time was covered by a provision of subsection 23WLA(2), 23XGB(2) or 23XGD(2).
23YK Proof of voluntary waiver of certain rights
In any proceedings:
(a) the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived a right as mentioned in subsection 23WG(3) or subsection 23XR(3); and
(b) the burden is not discharged unless the court is satisfied on the balance of probabilities that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
23YKA Application of sections 23YI to 23YK
To avoid doubt, sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:
(a) a foreign country; or
(b) an international tribunal; or
(c) a foreign law enforcement agency.
23YL Liability for forensic procedures
No civil or criminal liability is incurred by any person (including a constable) who carries out, or helps to carry out, a forensic procedure under this Part in respect of anything properly and necessarily done in good faith by the person in carrying out or helping to carry out the forensic procedure if the person believed on reasonable grounds that:
(a) informed consent had been given to the carrying out of the forensic procedure; or
(b) the carrying out of the forensic procedure without informed consent had been duly ordered by a constable or magistrate under this Part.
Note: This section does not provide any protection in respect of action taken maliciously.
23YM Experts not obliged to carry out forensic procedures
Nothing in this Part requires a medical practitioner, nurse, dentist, dental technician or appropriately qualified person to carry out a forensic procedure.
23YN Retention of electronic recordings
(1) A tape recording made by a constable in accordance with this Part that is no longer required for investigative or evidentiary purposes may be retained for such other purposes, and for such period, as the Commissioner directs.
(2) A recording that is retained under this section is to be stored so as to protect it against unauthorised access or use by any person.
23YO Disclosure of information
(1) A person commits an offence if:
(a) the person has access to any information stored on the Commonwealth DNA database system or NCIDD or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and
(b) the person’s conduct causes the disclosure of information other than as provided by this section; and
(c) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(1A) Paragraph (1)(a) does not apply to access to information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).
(2) A person may only disclose information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:
(a) the purposes of forensic comparison in the course of a criminal investigation by a constable or other person prescribed by the regulations;
(b) the purposes of making the information available, in accordance with the regulations, to the person to whom the information relates;
(c) the purposes of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;
(d) the purposes 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 purposes of assisting a foreign country or international tribunal to decide whether to make a request;
(e) the purposes 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 purposes of an investigation by the Information Commissioner or the Ombudsman of the Commonwealth or of a participating jurisdiction.
(3) A person may only disclose information revealed by the carrying out of a forensic procedure as follows:
(a) if the person is the suspect, offender or volunteer to whom the information relates;
(b) if the information is already publicly available;
(c) in accordance with any other provision of this Part;
(d) 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;
(e) for the purposes of the investigation of any offence or offences generally;
(f) for the purpose of a decision whether to institute proceedings for any offence;
(g) for the purpose of proceedings for any offence;
(h) for the purpose of a coronial inquest or inquiry;
(i) for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;
(ia) for the purpose of dealing with or investigating, under Part V or the Australian Federal Police Act 1979, an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;
(j) for the purposes of the suspect’s, offender’s or volunteer’s medical treatment;
(k) for the purpose of the medical treatment of the victim of an offence that there are reasonable grounds to believe was committed by the suspect;
(l) if the suspect, offender or volunteer consents in writing to the disclosure.
(4) This section does not apply to information that cannot be used to discover the identity of any person.
23YP Taking, retention and use of forensic material
Taking, retention and use authorised by laws of other jurisdictions
(1) Nothing in this Part affects the taking, retention or use of forensic material, or information obtained from forensic material, if the taking, retention or use of the material is authorised by or under a law of a State or a Territory.
(2) Forensic material, or information obtained from it, that was taken in accordance with a law of a State or a Territory may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.
Use and retention of forensic material taken before commencement of subsection
(3) Forensic material, or information obtained from it, that is taken in accordance with a law of a State or a Territory, as in force immediately before the commencement of this subsection, may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.
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.
23YQ Commissioner may delegate functions and powers
(1) The Commissioner of the Australian Federal Police may delegate all or any of his or her functions and powers under this Part to a constable or AFP appointee.
(2) In subsection (1), AFP appointee has the meaning it has in the Australian Federal Police Act 1979.
Division 9A—Carrying out forensic procedures at the request of a foreign country or international tribunal
Subdivision A—Requests by foreign countries or international tribunals
23YQA Application of Subdivision
This Subdivision applies if:
(a) a request is made by a foreign country or an international tribunal (the requesting entity) for a forensic procedure to be carried out on a person; and
(b) the Attorney‑General authorises, under the authorising provision relating to the request, an authorised applicant to apply to a magistrate for the carrying out of the forensic procedure on the person.
23YQB Providing evidence and material resulting from the forensic procedure
(1) Any forensic evidence resulting from the forensic procedure must be provided to the requesting entity in accordance with a direction described in subsection (3).
(2) Material (or a copy) relating to the request that was made available to, or viewed by, a person under subsection 23YF(1) (about recordings) may only be provided to the requesting entity in accordance with a direction described in subsection (3).
(3) The direction is one given by the Attorney‑General under the following provision:
(a) section 28C of the Mutual Assistance in Criminal Matters Act 1987, if the request was made by a foreign country;
(b) section 76B of the International Criminal Court Act 2002, if the request was made by the ICC;
(c) section 32C of the International War Crimes Tribunals Act 1995, if the request was made by a War Crimes Tribunal.
(4) This section does not limit the directions that can be given under that provision.
Subdivision B—Requests by a foreign law enforcement agency
23YQC Application of Subdivision
This Subdivision applies if a request is made by a foreign law enforcement agency that a forensic procedure be carried out on:
(a) a suspect in relation to a foreign serious offence who has given informed consent to the forensic procedure; or
(b) a volunteer.
Note: This includes a request by an authority or person responsible to an international tribunal for investigating or prosecuting a crime or an offence within the jurisdiction of the tribunal.
23YQD Providing forensic material etc. to a foreign law enforcement agency
(1) The Commissioner may provide forensic evidence to a foreign law enforcement agency if the Commissioner is satisfied that:
(a) the foreign law enforcement agency has given appropriate undertakings in relation to the retention, use and destruction of the forensic evidence; and
(b) it is appropriate, in all the circumstances of the case, to do so.
(2) If forensic evidence is to be provided to the foreign law enforcement agency, a copy of the tape recording or the written record mentioned in section 23WL (suspects) or 23XWS (volunteers) may also be provided to the foreign law enforcement agency.
(3) If an audio recording, a copy of it, or a copy of a transcript of a tape recording is made available to a suspect or volunteer (as required by subsection 23YF(1)), a copy of the audio recording or the transcript, or both, as the case may be, may also be provided to the foreign law enforcement agency.
(4) If:
(a) a video recording or a copy of it is made available to a suspect or volunteer (as required by subsection 23YF(1)); or
(b) both an audio recording and a video recording are made and the suspect or volunteer is given an opportunity to view the video recording (as required by subsection 23YF(1));
a copy of the video recording may also be provided to the foreign law enforcement agency.
Division 10—Operation of this Part and effect on other laws
23YQE Part does not apply to persons under 10
This Part does not authorise the carrying out of a forensic procedure on a person who is under 10 years of age.
23YR Relationship with Part IAA
This Part does not apply to the taking of hand prints, finger prints, foot prints or toe prints:
(a) from a suspect who is under 18 years of age or is incapable of managing his or her affairs, if the suspect has been arrested and charged as mentioned in section 3ZJ; or
(b) from a suspect who is at least 18 years of age and is capable of managing his or her affairs, if the suspect is in lawful custody in respect of an offence as mentioned in section 3ZJ.
Note: Part IAA deals with the taking of identification material as defined in subsection 3ZJ(1) (which includes prints) from suspects described in paragraphs 23YR(a) and (b).
23YS Relationship with Part IC
(1) Nothing in this Part is intended to limit the rights and protections provided by Part IC to the extent that the provisions of that Part can operate in circumstances covered by this Part.
(2) The rights and protections conferred by this Part are in addition to those conferred by Part IC but, to the extent (if any) that compliance with this Part results in compliance with Part IC, the requirements of Part IC are satisfied.
23YU Application of other laws
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth or of a law of a State or Territory relating to:
(a) the carrying out of forensic procedures, including procedures not referred to in this Part; or
(aa) without limiting paragraph (a), the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a person’s body; or
(b) the taking of forensic samples, including samples not referred to in this Part; or
(c) the taking of identification evidence; or
(d) the carrying out of searches of the person; or
(e) the retention or use of forensic material or information obtained as a result of activities described in paragraphs (a), (b), (c) and (d).
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
Division 11—Interjurisdictional enforcement
23YUA Definitions
In this Part:
appropriate authority means:
(a) in relation to a participating jurisdiction other than the Australian Capital Territory—an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Commissioner and any other authority prescribed by the regulations; or