(1) The Chief Commissioner of Police may authorise a person or a class of persons to take non-intimate samples or to conduct physical examinations of a non-intimate part of the body for the purposes of this Subdivision.
S. 464Z(1A) inserted by No. 16/2002 s. 7(1), amended by Nos 37/2014 s. 10(Sch. item 36.32(a)), 59/2015 s. 27(1), substituted by No. 3/2019 s. 57(2).
(1A) The Chief Commissioner of Police may authorise a police officer or police custody officer, or a class of police officers or police custody officers, to supervise for the purposes of subsection (3A) or (3AC)—
(a) the taking of scrapings from the mouth; or
(b) the taking of a DNA profile sample that is a scraping from the mouth.
S. 464Z(2) amended by No. 16/2002 s. 7(2).
(2) The Chief Commissioner must give a copy of an authority under subsection (1) or (1A) to the Minister who must cause it to be laid before the Legislative Council and the Legislative Assembly before the expiration of the seventh sitting day of the Council or the Assembly, as the case may be, after it has been received by the Minister.
S. 464Z(2A) inserted by No. 3/2019 s. 57(3).
(2A) The taking of a DNA profile sample or the conduct of a forensic procedure in accordance with this Subdivision, must be taken or conducted by the least intrusive and least painful method practicable in the circumstances.
(3) For the purposes of a forensic procedure under this Subdivision—
S. 464Z(3)(a) amended by Nos 81/1997
s. 19(2), 13/2010 s. 51(Sch. item 17.6(a)).
(a) an intimate sample (other than a dental impression) or a physical examination of an intimate part of the body may only be taken or conducted by a medical practitioner or nurse or midwife of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined;
(b) a dental impression may only be taken by a dentist;
S. 464Z(3)(c) amended by Nos 81/1997
s. 19(2), 16/2002 s. 7(3), 13/2010 s. 51(Sch. item 17.6(b)).
(c) a non-intimate sample or a physical examination of a non-intimate part of the body may be taken or conducted by a medical practitioner or nurse, or midwife or a person authorised in accordance with subsection (1).
S. 464Z(3AAA) inserted by No. 3/2019 s. 57(4).
(3AAA) For the purposes of a DNA profile sample taken in accordance with this Subdivision—
(a) a sample may only be taken by a medical practitioner or nurse of the same sex, if practicable, as the person from whom the sample is to be taken; and
(b) if the sample is to be taken from a child the sample must be taken in the presence of a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person of the same sex, if practicable, as the child.
S. 464Z(3AA) inserted by No. 41/2004 s. 13(1), amended by No. 37/2014 s. 10(Sch. item 36.32(b)).
(3AA) Despite subsection (3), a person from whom a sample of hair, other than pubic hair, is to be taken in accordance with—
(a) an authorisation given under section 464SA; or
(b) an order made by a court under this Subdivision—
may elect to provide instead a scraping taken by the person from his or her mouth if a police officer authorised in accordance with subsection (1A) considers that—
(c) a scraping is appropriate in the circumstances; and
(d) it is appropriate for the person to take the scraping.
S. 464Z(3AB) inserted by No. 41/2004 s. 13(1), amended by No. 27/2006 s. 17(22).
(3AB) An election made by a person under subsection (3AA) must be recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3AC) inserted by No. 3/2019 s. 57(5).
(3AC) Despite subsection (3AAA), a person from whom a DNA profile sample is to be taken in accordance with this Subdivision may elect to provide instead a scraping taken by the person from their mouth if a police officer authorised in accordance with subsection (1A) considers that it is appropriate for the person to take the scraping.
S. 464Z(3AD) inserted by No. 3/2019 s. 57(5).
(3AD) An election made by a person under subsection (3AC) must be recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3A) inserted by No. 16/2002 s. 7(4), amended by Nos 37/2014 s. 10(Sch. item 36.32(c)(i)), 59/2015 s. 27(2), 3/2019 s. 57(6).
(3A) Nothing in subsection (3) or (3AAA) prevents a person from whom a scraping from the mouth is to be taken from taking the scraping himself or herself under the supervision of a police officer or police custody officer authorised in accordance with subsection (1A) if—
S. 464Z(3A)(a) amended by Nos 37/2014 s. 10(Sch. item 36.32(c)(ii)), 59/2015 s. 27(2).
(a) the police officer or police custody officer considers it appropriate for the person to do so; and
S. 464Z(3A)(b) amended by No. 27/2006 s. 17(23).
(b) the person consents to taking the scraping and the consent is recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3B) inserted by No. 16/2002 s. 7(4), amended by Nos 41/2004 s. 13(2)(a), 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(3), 3/2019 s. 57(7).
(3B) The police officer referred to in subsection (3AA) or (3AC), or the police officer or police custody officer referred to in subsection (3A), must give or send by registered post to the person from whom a scraping is taken or his or her legal practitioner, without charge—
S. 464Z(3B)(a) amended by Nos 41/2004 s. 13(2)(b)(i)(ii), 27/2006 s. 17(24).
(a) if the election or consent is recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the election is made or the consent is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and
S. 464Z(3B)(b) amended by No. 41/2004 s. 13(2)(c).
(b) if the election or consent is recorded in writing, a copy of the record forthwith.
S. 464Z(4) amended by Nos 81/1997
s. 19(3), 41/2004 s. 13(3), 13/2010 s. 51(Sch. item 17.6(c)).
(4) A person from whom an intimate sample is to be taken (except a scraping from a person's mouth to be taken by that person) or who is to undergo a physical examination of an intimate part of the body may request that a medical practitioner or nurse or midwife or, if a dental impression is to be taken, a dentist of his or her choice take the sample or conduct the examination or be present during the forensic procedure.
S. 464Z(5) amended by Nos 81/1997
s. 19(4), 13/2010 s. 51(Sch. item 17.6(d)).
(5) If a medical practitioner, nurse, midwife or dentist is chosen by a person under subsection (4)—
(a) if practicable, the forensic procedure is to be conducted by or in the presence of the chosen person; and
S. 464Z(5)(b) amended by No. 81/1997
s. 19(4).
(b) if the chosen person conducts the forensic procedure, a medical practitioner, nurse or dentist (as the case requires) nominated by the police must be present.
(6) A sample must be taken or a physical examination must be conducted—
S. 464Z(6)(a) amended by Nos 81/1997
s. 21(a), 13/2010 s. 51(Sch. item 17.6(e)).
(a) if taken or conducted by a medical practitioner, nurse, midwife or dentist, in a manner consistent with the appropriate medical or dental standards; and
S. 464Z(6)(ab) inserted by No. 81/1997
s. 21(b), amended by Nos 16/2002 s. 7(5)(a), 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(4).
(ab) in the presence of a police officer or police custody officer who is present to witness the taking of the sample or the conduct of the physical examination, subject to subsection (9), and is of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined; and
(b) in circumstances affording reasonable privacy to the person from whom the sample is to be taken or who is to be examined; and
(c) in the presence only of—
S. 464Z(6)(c)(i) amended by Nos 81/1997
s. 21(c), 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(4).
(i) a police officer or police custody officer required by paragraph (ab) to be present; and
(ii) a person required by section 464ZA to be present; and
S. 464Z(6)
(c)(iii) amended by No. 16/2002 s. 7(5)(b).
(iii) a person referred to in subsection (5); and
S. 464Z(6)
(c)(iv)
inserted by No. 16/2002 s. 7(5)(b). amended by Nos 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(4).
(iv) a police officer or police custody officer referred to in subsection (3A).
(7) A blood sample for the purposes of this Subdivision must not exceed 10 millilitres.
S. 464Z(7A) inserted by No. 41/2004 s. 13(4).
(7A) For the purposes of this Subdivision, a person is authorised to take a sample of hair by removing the root of the hair only if—
(a) the person takes only so much hair as the person believes is necessary for analysis of the sample or other examination of the hair; and
(b) strands of hair are taken using the least painful technique known and available to the person.
S. 464Z(8) amended by Nos 81/1997
s. 19(5), 13/2010 s. 51(Sch. item 17.6(f)).
(8) This Subdivision does not compel any medical practitioner, nurse, midwife or dentist to take a sample from a person nor to conduct a physical examination of a person nor to be present when a sample is taken or an examination is conducted.
S. 464Z(9) inserted by No. 16/2002 s. 7(6).
(9) If a scraping is to be taken from a person's mouth and the person is to take it, the witness required by subsection (6)(ab) to be present need not be of the same sex as the person.
S. 464ZA (Heading) inserted by No. 41/2004 s. 14(1), amended by No. 25/2017 s. 51(1).
S. 464ZA inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.
464ZA Execution of authorisation, direction or order
S. 464ZA(1) amended by No. 81/1997
s. 22(1)(a)(b), substituted by No. 41/2004 s. 14(2), amended by Nos 13/2010 s. 51(Sch. item 17.7), 37/2014 s. 10(Sch. item 36.33(a)), 3/2019 s. 58(2)(c).
(a) a senior police officer gives an authorisation under section 464SA for the conduct of a non-intimate compulsory procedure; or
S. 464ZA(1)(ab) inserted by No. 3/2019 s. 58(1).
(ab) a senior police officer gives an authorisation under section 464SE for the taking of a DNA profile sample; or
S. 464ZA(1)(ac) inserted by No. 3/2019 s. 58(1).
(ac) a senior police officer gives an authorisation under section 464ZFAE for the taking of a DNA profile sample from a person; or
(b) a court makes an order under section 464T(3), 464U(7) or 464V(5) for the conduct of a compulsory procedure; or
S. 464ZA(1)(c) amended by Nos 27/2006 s. 6(a). 25/2017 s. 51(2)(a).
(c) a court makes an order under section 464ZF or 464ZFAAA for the conduct of a forensic procedure; or
S. 464ZA(1)(d) inserted by No. 25/2017 s. 51(2)(b), amended by No. 3/2019 s. 58(2)(a).
(d) a police officer directs that a DNA profile sample be taken from a person under section 464ZFAB; or
S. 464ZA(1)(e) inserted by No. 3/2019 s. 58(2)(b).
(e) a senior police officer authorises the taking of a DNA profile sample from a person under section 464ZFAC or 464ZFAE—
a police officer, with such assistance as he or she considers necessary, may use reasonable force to assist a medical practitioner, nurse, midwife, dentist or person authorised under section 464Z to take the sample or conduct the procedure.
S. 464ZA(2) amended by No. 37/2014 s. 10(Sch. item 36.33(b)).
(2) If practicable, a police officer acting in accordance with subsection (1) and any person assisting the police officer—
S. 464ZA(2)(a) amended by No. 3/2019 s. 58(3).
(a) must be of the same sex as the person from whom the sample is to be taken or on whom the procedure is to be conducted; and
(b) must not be involved in investigating the offence for which the procedure is required.
(3) If the Children's Court makes an order under section 464U(7) or 464V(5), a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person of the same sex, if practicable, as the child must be present during the conduct of a compulsory procedure on the child.
S. 464ZA(3A) inserted by No. 3/2019 s. 58(4).
(3A) The taking of a DNA profile sample (other than a scraping from the person's mouth taken by that person)—
(a) must be recorded by audiovisual recording, if practicable; or
(b) must be witnessed by an independent medical practitioner or independent nurse.
S. 464ZA(4) amended by No. 16/2002 s. 8(1).
(4) The taking of an intimate sample (other than a blood sample or a scraping from a person's mouth taken by that person) or the examination of an intimate part of the body in accordance with the order of a court—
S. 464ZA(4)(a) amended by No. 27/2006 s. 17(25).
(a) must be recorded by audiovisual recording, if practicable and if the person on whom the procedure is to be conducted consents; or
S. 464ZA(4)(b) amended by Nos 81/1997
s. 19(6)(a)(b), 13/2010 s. 51(Sch. item 17.8).
(b) must be witnessed by an independent medical practitioner or independent nurse or independent midwife or, if a dental impression is to be taken, an independent dentist or the medical practitioner, nurse, midwife or dentist chosen by the person to be present at the procedure.
S. 464ZA(5) amended by Nos 81/1997
s. 22(2), 16/2002 s. 8(2), 41/2004 s. 14(3), 27/2006 s. 17(26).
(5) All other compulsory or forensic procedures (except a scraping from a person's mouth taken by that person) conducted in accordance with the authorisation of a senior police officer or the order of a court must be recorded by audiovisual recording, if practicable, or witnessed by an independent person.
S. 464ZA(6) substituted by No. 81/1997
s. 22(3), amended by Nos 41/2004 s. 14(4)(a), 27/2006 s. 6(b), 25/2017 s. 51(3), 3/2019 s. 58(5)(a).
(6) After an authorisation under section 464SA, 464SE, 464ZFAC or 464ZFAE or an order under section 464T(3), 464U(7), 464V(5), 464ZF or 464ZFAAA or a direction under section 464ZFAB is executed—
S. 464ZA(6)(a) amended by Nos 41/2004 s. 14(4)(b), 27/2006 s. 17(27), 37/2014 s. 10(Sch. item 36.33(c)), 3/2019 s. 58(5)(b).
(a) if the taking of the sample or the procedure was recorded by audiovisual recording, the person who recorded the conduct of the procedure, or the police officer who witnessed the conduct of the procedure, must endorse on the authorisation or order his or her own name and sign the endorsement; or
S. 464ZA(6)(b) amended by Nos 41/2004 s. 14(4)(b), 13/2010 s. 51(Sch. item 17.9), 3/2019 s. 58(5)(c).
(b) if an independent medical practitioner, nurse, midwife, dentist or other person witnessed the taking of the sample or the conduct of the procedure, the witness must endorse on the authorisation or order his or her own name and sign the endorsement.
S. 464ZA(6A) inserted by No. 81/1997
s. 22(3), amended by Nos 41/2004 s. 14(5), 37/2014 s. 10(Sch. item 36.33(c)), 3/2019 s. 58(6).
(6A) A police officer must give a copy of the authorisation or order so endorsed to the person from whom the sample was taken or on whom the procedure was conducted.
S. 464ZA(7) amended by Nos 81/1997
s. 22(4), 41/2004 s. 14(6)(a)(b), 27/2006 s. 17(28), substituted by No. 3/2019 s. 58(7).
(7) If a DNA profile sample taken in accordance with an authorisation or a direction, or a compulsory procedure or a forensic procedure conducted in accordance with an authorisation of a senior police officer or an order of a court, is recorded by audiovisual recording, the applicant for the authorisation, direction or order must—
(a) without charge; and
(b) as soon as practicable but not more than 7 days after the procedure was conducted or the sample was taken—
give or send by registered post a copy of the audiovisual recording to the person from whom the sample was taken or on whom the procedure was conducted or to the person's legal practitioner.
S. 464ZA(8) inserted by No. 3/2019 s. 58(7).
(8) If the person referred to in subsection (7) from whom the sample was taken or on whom the procedure was conducted was a child, the applicant for the authorisation or order must also give or send by registered post a copy of the audiovisual recording to the parent or guardian of the child if the child's legal practitioner is not known.
S. 464ZB inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.
464ZB Analysis of samples
(1) If a sample taken in accordance with this Subdivision is analysed, it must be analysed—
(a) in accordance with the prescribed standards, if any; and
(b) by an analyst authorised under this section, if the regulations so require.
(2) The Minister may authorise, by notice published in the Government Gazette, persons whom the Minister considers to be appropriately qualified to carry out analyses for the purposes of this Subdivision.
(3) An authority given under subsection (1) may be in respect of a particular type of analysis specified in the authority.
(4) The Minister must cause the name of a person authorised under this section to be laid before the Legislative Council and the Legislative Assembly before the expiration of the seventh sitting day of the Council or the Assembly, as the case may be, after the date of publication of the notice in the Government Gazette.
S. 464ZC inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.
464ZC Analysis of material found at scene of offence etc.
S. 464ZC(1) amended by No. 81/1997 s. 23 (ILA s. 39B(1)).
(1) If material reasonably believed to be from the body of a person who committed an indictable offence has been found—
(a) at the scene of the offence; or
(b) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(c) on an object or person reasonably believed to have been associated with the commission of the offence—
and there is sufficient material to be analysed both in the investigation of the offence and on behalf of a person from whom a sample has been taken in relation to that offence, a part of the material sufficient for analysis must, on request, be delivered to that person.
S. 464ZC(2) inserted by No. 81/1997
(2) If material, reasonably believed to be from the body of a victim of an indictable offence which has not been found, has been found on a person reasonably believed to have been associated with the commission of the offence, and there is sufficient material to be analysed both in the investigation of the offence and on behalf of a person from whom a sample has been taken in relation to that offence, a part of the material sufficient for analysis must, on request, be delivered to that person.
S. 464ZC(3) inserted by No. 81/1997
(3) If—
(a) a sample has been taken from a child in connection with an investigation into an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I; and
(b) that child was conceived allegedly as a result of that offence—
a person suspected of having committed that offence and from whom a sample has been taken in relation to that offence may request a part of the child's sample.
S. 464ZC(4) inserted by No. 81/1997
(4) A part of that child's sample requested by a person under subsection (3) must be delivered to that person provided that there is sufficient material to be analysed both in the investigation of the offence and on behalf of the person suspected of having committed the offence.
S. 464ZD inserted by No. 84/1989 s. 5, amended by No. 84/1989 ss 7(l)(m), 8(d), substituted by No. 129/1993 s. 7, amended by Nos 80/1998
s. 3(a)(i)–(iii), 41/2004 s. 15, 27/2006 s. 7, 3/2019 s. 59 (ILA s. 39B(1)).
464ZD Forensic reports to be made available
(1) If a forensic procedure has been conducted on a person in accordance with section 464R, 464SA, 464T(3), 464U(7), 464V(5), 464ZF(2) or (3) or 464ZFAAA(2) or sections 464ZGB to 464ZGD or otherwise in accordance with this Subdivision, a copy of every forensic report must be given or sent by registered post as soon as practicable to that person (or, in the case of a forensic procedure conducted in accordance with section 464ZF or 464ZFAAA on a person who is a child within the meaning of that section, to that child and a parent or guardian of that child) or his or her legal practitioner.
S. 464ZD(2) inserted by No. 3/2019 s. 59.
(2) If a DNA profile sample has been taken from a DNA person in accordance with section 464SC or 464SE, a copy of every forensic report must be given or sent by registered post as soon as practicable to—
(a) that person or the person's legal practitioner; and
(b) if that person is a child, also to the child's parent or guardian.
S. 464ZD(3) inserted by No. 3/2019 s. 59.
(3) If a DNA profile sample has been taken from a person in accordance with section 464ZFAB, a senior police officer authorisation or an authorisation under section 464ZFAE, a copy of every forensic report must be given or sent by registered post as soon as practicable to that person or the person's legal practitioner.
S. 464ZE (Heading) inserted by No. 3/2019 s. 60(1).
S. 464ZE inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.
464ZE Evidence relating to forensic procedures or DNA profile samples[[37]](#endnote-38)
S. 464ZE(1) amended by Nos 81/1997
s. 24(1)(a), 16/2002 s. 9, 3/2019 s. 60(2)(a).
(1) Subject to subsection (4) and section 464ZGO, evidence obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person, or from a sample voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, is inadmissible as part of the prosecution case in proceedings against that person for any offence if—
S. 464ZE(1)(a) amended by No. 81/1997
s. 24(1)(b).
(a) the requirements of sections 464R to 464ZA, sections 464ZF to 464ZFB, sections 464ZGB to 464ZGD or section 464ZGF (as the case may be) have not been complied with; or
S. 464ZE (1)(ab) inserted by No. 80/1998
s. 3(b), amended by No. 3/2019 s. 60(2)(b).
(ab) a copy of a forensic report relating to the taking of the sample or the procedure required by section 464ZD to be given or sent by registered post to a person had not been given or sent to that person before the end of the period of 7 days after its receipt by the prosecution; or
S. 464ZE(1)(b) amended by No. 3/2019 s. 60(2)(c).
(b) the taking of the sample or the procedure was not conducted in accordance with the prescribed standards, if any; or
(c) any sample taken was not analysed—
(i) in accordance with the prescribed standards, if any; or
(ii) if the regulations so require, by an analyst authorised under section 464ZB; or
S. 464ZE(1)(d) amended by Nos 81/1997
s. 24(1)(c), 27/2006 s. 8, 3/2019 s. 60(2)(d)(ii).
(d) any sample taken and any information which may identify the person contained in—
S. 464ZE(1)(d)(i) amended by No. 3/2019 s. 60(2)(d)(i).
(i) any record of or report relating to the taking of the sample or the forensic procedure; or
(ii) any copy of such a record or report—
should have been but has not been destroyed as required by section 464ZF, 464ZFAAA, 464ZFAC, 464ZFC, 464ZG, 464ZGA or 464ZGE; or
(e) the evidence was obtained as a result of a procedure conducted in accordance with an interim order which subsequently is not confirmed under section 464V(7).
S. 464ZE(2) amended by Nos 81/1997
s. 24(2)(a), 80/1998 s. 3(c), 3/2019 s. 60(2)(e).
(2) A court may admit evidence obtained as a result of the taking of a DNA profile sample or a forensic procedure, or from a sample voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, otherwise inadmissible by reason of subsection (1)(a) or (1)(ab) if—
S. 464ZE(2)(a) amended by No. 81/1997
s. 24(2)(b).
(a) the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence; or
(b) the accused consents to the reception of the evidence.
S. 464ZE(2A) inserted by No. 81/1997
s. 24(3), amended by No. 80/1998
s. 3(c).
(2A) In determining whether the circumstances justify the reception of evidence otherwise inadmissible by reason of subsection (1)(a) or (1)(ab), the court may have regard to the following—
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
S. 464ZE (2A)(b) amended by No. 80/1998
s. 3(c).
(b) the reasons given for the failure to comply with a provision referred to in subsection (1)(a) or (1)(ab);
(c) the gravity of that failure and whether it deprived the person of a significant protection under this Subdivision;
(d) whether that failure was intentional or reckless;
(e) the nature of the requirement that was not complied with;
(f) the nature of the offence alleged against the person and the subject-matter of the proceedings;
(g) whether the reception of the evidence would seriously undermine the protection given to persons under this Subdivision;
(h) any other matters the court considers relevant.
S. 464ZE(3) substituted by No. 81/1997
s. 24(3).
(3) The probative value of the evidence does not by itself justify the reception of the evidence.
S. 464ZE(4) amended by Nos 27/2006 s. 17(29), 3/2019 s. 60(2)(f).
(4) If the taking of a DNA profile sample or the conduct of a forensic procedure is recorded by audiovisual recording, the recording is inadmissible as evidence except—
S. 464ZE(4)(a) amended by No. 3/2019 s. 60(2)(g).
(a) to establish or rebut an allegation that unreasonable force was used to enable the sample to be taken or the procedure to be conducted; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the accused where the accused alleges that the evidence was induced or obtained by the use of unreasonable force.
S. 464ZE(5) amended by No. 3/2019 s. 60(2)(h).
(5) If evidence obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person would be admissible in proceedings against that person for an offence, that evidence is admissible in proceedings against that person for a relevant offence within the meaning of section 464ZG.
(6) Evidence obtained as a result of a physical examination conducted in good faith on a person for the purposes of medical or dental treatment is admissible in proceedings against that person for an offence.
S. 464ZF inserted by No. 84/1989 s. 5, substituted by Nos 129/1993 s. 7, 81/1997
464ZF Forensic procedure following the commission of forensic sample offence
S. 464ZF(1) def. of child amended by Nos 72/2004 s. 31(1), 32/2024 s. 808.
child means a child who is 12 years of age or over but under 18 years of age;
S. 464ZF(1) def. of forensic sample offence amended by No. 72/2013 s. 9(1).
forensic sample offence means any indictable offence or any offence specified in Schedule 8.
S. 464ZF(2) amended by Nos 14/2006 s. 13(1)(a), 37/2014 s. 10(Sch. item 36.34).
(2) If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of—
S. 464ZF(2)(a) amended by No. 72/2013 s. 9(2).
(a) a forensic sample offence (within the meaning of that term as then in force); or
(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence—
a police officer, at any time following that finding but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
S. 464ZF(2AA) inserted by No. 35/2002 s. 28(Sch. item 3.3), amended by No. 14/2006 s. 13(1)(b).
(2AA) If the finding of guilt referred to in subsection (2)—
(a) occurs between 1 January 2002 and the commencement of item 3.4 in the Schedule to the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002; and
(b) is in respect of an offence referred to in item 29, 30 or 31 of Schedule 8—
an application under subsection (2) may be made not later than 12 months after the final determination of an appeal against conviction or sentence or the expiration of any appeal period (whichever is the later).
S. 464ZF(2A) inserted by No. 16/2002 s. 10.
(2A) An order under subsection (2) in respect of a person who is not a detained or protected person must include a direction that the person attend—
(a) at a place; and
(b) within a period, commencing after the expiry of the period referred to in subsection (6) during which the order must not be executed—
specified in the order to undergo the forensic procedure.
S. 464ZF(3) amended by No. 37/2014 s. 10(Sch. item 36.34).
(3) If—
S. 464ZF(3)(a) amended by No. 72/2013 s. 9(3).
(a) at any time before the commencement of section 25 of the Crimes (Amendment) Act 1997, a person has been found guilty by a court of a forensic sample offence (within the meaning of that term as then in force); and
S. 464ZF(3)(b) amended by Nos 48/2006 s. 42(Sch. item 9.3), 26/2014 s. 455(Sch. item 7.4).
(b) at any time on or after that commencement, that person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth justice centre or as a security patient in a designated mental health service for any offence, whether or not a forensic sample offence—
a police officer may apply to the Magistrates' Court or the Children's Court (as the case may be) for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
S. 464ZF(4) amended by No. 37/2014 s. 10(Sch. item 36.34).
(4) In any application to a court under subsection (2) or (3), the police officer must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
S. 464ZF(5) substituted by No. 41/2004 s. 16, amended by No. 72/2004 s. 31(2).
(5) If, on or after the commencement of the Crimes (Amendment) Act 2004, an application under subsection (2) or (3) is made in respect of a person aged 18 years or more—
(a) the application may be made without notice to any person; and
(b) the person is not a party to the application; and
(c) the person may not call or cross-examine any witnesses; and
(d) the person may not address the court, other than in response to inquiries made by the court under subsection (8)(c).
S. 464ZF(5A) inserted by No. 41/2004 s. 16.
(5A) If, on or after the commencement of the Crimes (Amendment) Act 2004, an application under subsection (2) or (3) is made in respect of a child—
(a) notice of the application must be served on the child and a parent or guardian of the child; and
(b) the child is not a party to the application; and
(c) the child may not call or cross-examine any witnesses; and
(d) the child may not address the court, other than in respect of any matter referred to in subsection (8)(a) or (b) or in response to inquiries made by the court under subsection (8)(c).
S. 464ZF(5B) inserted by No. 41/2004 s. 16.
(5B) In exercising the right of address under subsection (5A)(d), a child may be represented by a legal practitioner, or, with the leave of the court, a parent or guardian of the child.
S. 464ZF(6) amended by No. 14/2006 s. 13(1)(c)(i)(ii).
(6) An order made by a court under subsection (2) or (3) before the appeal period in relation to the conviction for the forensic sample offence has expired or an appeal against conviction (if any) has been finally determined (whichever is the later), must not be executed unless—
(a) that appeal period expires; or
S. 464ZF(6)(b) amended by No. 14/2006 s. 13(1)(c)(ii).
(b) an appeal against conviction (if any) is finally determined and the conviction for the forensic sample offence is upheld—
whichever is the later.
S. 464ZF(6A) inserted by No. 14/2006 s. 13(2).
(6A) If leave to appeal against a conviction for a forensic sample offence is sought after the expiry of the appeal period in relation to the conviction, an order made by a court under subsection (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a) leave to appeal against the conviction is refused; or
(b) leave to appeal against the conviction is granted and the appeal is finally determined and the conviction for the forensic sample offence is upheld.
S. 464ZF(6B) inserted by No. 14/2006 s. 13(2).
(6B) If an order made by a court under subsection (2) has been executed after the expiration of the appeal period in relation to the conviction for the forensic sample offence and leave to appeal against the conviction is granted after the expiry of that period—
S. 464ZF
(6B)(a) amended by No. 37/2014 s. 10(Sch. item 36.34).
(a) any sample and any related material and information taken may be retained by a police officer pending the final determination of the appeal against conviction; and
S. 464ZF
(6B)(b) amended by No. 68/2009 s. 97(Sch. item 40.36).
(b) if, on appeal, the conviction for the forensic sample offence is set aside, the Chief Commissioner of Police must without delay destroy, or cause to be destroyed, any sample taken and any related material and information.
S. 464ZF(7) amended by No. 68/2009 s. 97(Sch. item 40.36).
(7) If on appeal a conviction for the forensic sample offence is set aside, an order made by a court under subsection (2) or (3) ceases to have effect.
(8) A court hearing an application under subsection (2) or (3)—
(a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under subsection (2) or (3); and
S. 464ZF(8)(c) amended by No. 6/2018 s. 68(Sch. 2 item 35.11).
(9) If a court makes an order under subsection (2) or (3), it must—
(a) give reasons for its decision and cause a copy of the order and reasons to be served—
(i) if the order directs a person (other than a child) to undergo the forensic procedure, on the person; or
(ii) if the order directs a child to undergo the forensic procedure, on the child and a parent or guardian of the child; and
S. 464ZF(9)(b) amended by No. 37/2014 s. 10(Sch. item 36.34).
(b) inform the person ordered to undergo the forensic procedure that a police officer may use reasonable force to enable the procedure to be conducted.
(10) A failure of a court to comply with subsection (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464ZF(11) repealed by No. 80/1998
s. 3(d).
S. 464ZFAAA inserted by No. 27/2006 s. 9.
464ZFAAA Forensic procedure following finding of not guilty because of mental impairment
S. 464ZFAAA (1) def. of child amended by No. 32/2024 s. 809(1).
child means a child who is 12 years of age or over but under 18 years of age;
(1) def. of forensic sample offence amended by Nos 68/2009 s. 97(Sch. item 40.37), 72/2013 s. 10(1).
forensic sample offence means any indictable offence or any offence specified in Schedule 8, other than an offence heard and determined summarily.
(2) amended by No. 37/2014 s. 10(Sch. item 36.34).
(2) If a court finds a person not guilty because of mental impairment of—
(2)(a) amended by No. 72/2013 s. 10(2).
(a) a forensic sample offence (within the meaning of that term as then in force); or
(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence—
a police officer, at any time following that finding but not later than 6 months after the final determination of an appeal or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
(3) amended by No. 37/2014 s. 10(Sch. item 36.34).
(3) In an application under subsection (2), the police officer must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
(4) Notice of an application under subsection (2)—
(a) must be served on the person in respect of whom the order is sought and, if the person is a child, on a parent or guardian of the child; and
S. 464ZFAAA (4)(b) amended by No. 32/2024 s. 809(2).
(b) must include a requirement that the person in respect of whom the order is sought attend the hearing of the application in person or by the person's legal practitioner.
(5) In determining whether to make an order under subsection (2), a court—
(a) must take into account the seriousness of the circumstances of the forensic sample offence of which the person has been found not guilty because of mental impairment; and
(5)(c) amended by No. 6/2018 s. 68(Sch. 2 item 35.11).
S. 464ZFAAA (6) amended by No. 32/2024 s. 809(3).
(6) An application made under subsection (2) must be heard in the presence of the person in respect of whom the order is sought or the person's legal practitioner.
(7) A person in respect of whom an application under subsection (2) is made—
(c) may not address the court other than in response to inquiries made by the court under subsection (5)(c).
(8) In exercising the right of address under subsection (7)(c), a person may be represented by a legal practitioner.
(9) An order under subsection (2) in respect of a person who is not a forensic patient or a forensic resident within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 must include a direction that the person attend—
(a) at a place; and
(b) within a period (commencing after the expiry of the period referred to in subsection (12) during which the order must not be executed)—
specified in the order to undergo the forensic procedure.
(10) If a court makes an order under subsection (2), it must—
(a) give reasons for its decision and cause a copy of the order and reasons to be served on the person ordered to undergo the forensic procedure; and
(10)(b) amended by No. 37/2014 s. 10(Sch. item 36.34).
(b) inform the person ordered to undergo the forensic procedure that a police officer may use reasonable force to enable the procedure to be conducted.
(11) A failure of a court to comply with subsection (10) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
(12) An order made by a court under subsection (2) before the appeal period in relation to the verdict of not guilty because of mental impairment has expired or an appeal against the verdict (if any) has been finally determined (whichever is the later), must not be executed unless—
(a) that appeal period expires; or
(b) the appeal against the verdict is dismissed—
whichever is the later.
(13) If leave to appeal against a verdict of not guilty because of mental impairment in respect of a forensic sample offence is sought after the expiry of the appeal period in relation to the verdict, an order made by a court under subsection (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a) leave to appeal against the verdict is refused; or
(b) leave to appeal against the verdict is granted but the appeal is dismissed.
(14) If an order made by a court under subsection (2) has been executed after the expiry of the appeal period in relation to the verdict of not guilty because of mental impairment in respect of a forensic sample offence and leave to appeal against the verdict is granted after the expiry of that period—
(14)(a) amended by No. 37/2014 s. 10(Sch. item 36.34).
(a) any sample and any related material and information taken may be retained by a police officer but may not be used for any purpose pending the final determination of the appeal against the verdict; and
(b) if, on appeal, the verdict is set aside, the Chief Commissioner of Police must, without delay, destroy or cause to be destroyed any sample taken and any related material and information.
(15) If on appeal a verdict of not guilty because of mental impairment is set aside, an order made by a court under subsection (2) ceases to have effect.
S. 464ZFAA inserted by No. 16/2002 s. 11.
464ZFAA Notice to attend for forensic procedure
S. 464ZFAA(1) amended by No. 37/2014 s. 10(Sch. item 36.35(a)).
(1) If a senior police officer is satisfied that—
(a) an order under section 464ZF(2) in respect of a person was made—
(i) before the commencement of section 11 of the Crimes (DNA Database) Act 2002; or
(ii) when the person was a detained or protected person and within the period of 6 months immediately preceding the serving of the notice the person ceased to be a detained or protected person; and
(b) the order has not been executed; and
(c) the period referred to in section 464ZF(6) during which the order must not be executed has expired—
the senior police officer may serve on the person a notice in accordance with subsections (2) and (3).
(2) A notice must direct the person to attend at a police station specified in the notice within 28 days after service of the notice to undergo the forensic procedure ordered by the court and must state—
(a) the date on which the order under section 464ZF(2) was made;
(b) the court which made the order;
(c) that the person has not undergone the forensic procedure;
(d) that if the person fails to comply with the notice, application for a warrant to arrest the person may be made without further notice to the person;
(e) that the person may wish to seek legal advice as to the effect of the notice;
S. 464ZFAA
(2)(f) amended by No. 37/2014 s. 10(Sch. item 36.35(b)).
(f) the name, rank and telephone number of the senior police officer serving the notice.
(3) A copy of the order under section 464ZF(2) must be attached to and served with the notice.
(4) A notice may be served on a person by—
(a) delivering a true copy of the notice to the person personally; or
(b) leaving a true copy of the notice for the person at the person's last or most usual place of residence or business with a person who apparently resides or works there and who is apparently not less than 16 years of age; or
(c) posting the notice to the person at their last known place of residence or business.
(5) If a notice is served by post in accordance with subsection (4)(c), evidence of service must state the manner of ascertainment of the address to which the notice was posted and the time and place of posting.
S. 464ZFAA(6) amended by No. 37/2014 s. 10(Sch. item 36.35(c)).
(6) If a person does not comply with a notice served under this section, a police officer may apply to a magistrate or a registrar of the Magistrates' Court for a warrant under subsection (7).
S. 464ZFAA(7) amended by No. 6/2018 s. 68(Sch. 2 item 35.10).
(7) If a magistrate or a registrar to whom such an application is made is satisfied by evidence on oath or by affirmation or affidavit that—
(a) a notice was served on a person in accordance with this section; and
(b) the person has not undergone the forensic procedure—
the magistrate or registrar may issue a warrant authorising the person to whom it is directed, if necessary—
(c) to break, enter and search by day or by night any place where the person named in the warrant is suspected to be; and
(e) to detain the person for as long as reasonably permits the conduct of the forensic procedure.
(8) Section 464ZFA(2), (3), (4), (5), (6) and (7) apply to a warrant issued under subsection (7) as if it were a warrant issued under section 464ZFA(1B).
S. 464ZFAB (Heading) amended by No. 3/2019 s. 61(1).
S. 464ZFAB inserted by No. 25/2017 s. 52.
464ZFAB DNA profile sample from registrable offenders under the Sex Offenders Registration Act 2004
S. 464ZFAB(1) def. of initial period inserted by No. 25/2017 s. 53(1).
initial period means the period of 3 years commencing on the day on which section 52 of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 comes into operation;
registrable offender has the same meaning as in section 3 of the Sex Offenders Registration Act 2004.
S. 464ZFAB(2) amended by No. 3/2019 s. 61(2)(a).
(2) A police officer may, at any time, direct that a DNA profile sample be taken from a person if, at the time that the direction is given—
(a) the person is a registrable offender; and
S. 464ZFAB(2)(b) amended by No. 3/2019 s. 61(2)(b).
(b) the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely.
S. 464ZFAB(3) amended by No. 3/2019 s. 61(3).
(3) A senior police officer may serve, or may cause to be served, a notice on a person referred to in subsection (2) directing the person to attend at a police station specified in the notice to have the DNA profile sample taken within 28 days after service of the notice.
(4) A notice under subsection (3) must—
(a) state that if the person fails to comply with the notice, an application for a warrant to arrest the person may be made without further notice to the person; and
(b) state that the person may wish to seek legal advice as to the effect of the notice; and
(c) state the name, rank and telephone number of the senior police officer serving the notice or causing the notice to be served; and
(d) contain the prescribed information, if any.
(5) A notice under subsection (3) must be served by delivering a true copy of the notice to the person personally.
(6) Section 464ZFAA(6), (7) and (8) apply to a notice served under subsection (3) as if it were a notice served under that section.
S. 464ZFAB(7) amended by No. 3/2019 s. 61(4).
(7) If a DNA profile sample is taken from a person under this section, the sample taken and any related material and information may be retained indefinitely.
(8) Subsection (7) does not apply if, on appeal against conviction, the finding of guilt of the registrable offender in respect of an offence is quashed or set aside and, but for that offence, the person would not be a registrable offender.
S. 464ZFAB(9) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(9) Subject to subsection (10), a police officer may give a direction under subsection (2) to a registrable offender whose reporting obligations under the Sex Offenders Registration Act 2004—
(a) have been suspended under Division 6 of Part 3 of that Act; or
(b) have been suspended under section 32(1)(b) of that Act; or
(c) have expired under section 34(1) of that Act—
only if a notice under subsection (3) has been served on the registrable offender.
(10) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(10) A registrable offender referred to in subsection (9) may refuse to have a DNA profile sample taken and to attend at a police station in compliance with a notice under subsection (3) if the registrable offender demonstrates to the reasonable satisfaction of the senior police officer referred to in subsection (3)—
(a) if the registrable offender was a registrable offender on the commencement of the initial period, that the registrable offender has been resident in Victoria for not less than 2 years and 6 months in aggregate during the initial period; or
(b) that the registrable offender has been resident in Victoria for a continuous period of 12 months at any time after the expiry of the initial period and was a registrable offender during the whole of that period of 12 months.
(11) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(11) A person serving a notice under subsection (3) on a registrable offender referred to in subsection (9) must inform the registrable offender, in a manner likely to be understood by the offender, of the following matters—
(a) that the offender may refuse to comply with the notice;
(11)(b) amended by No. 38/2022 s. 91(2).
(b) the grounds on which the offender may refuse to comply;
(c) that the offender may wish to seek legal advice as to the effect of the notice.
(12) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(12) A senior police officer referred to in subsection (10) must take into account any information provided by the registrable offender.
(13) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(13) Before a registrable offender referred to in subsection (9) has a DNA profile sample taken, a police officer must, in a manner likely to be understood by the offender—
(a) inform the offender of the grounds on which the offender may refuse to have the DNA profile sample taken; and
(b) ask the offender whether the offender wishes to refuse.
(14) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).
(14) If a registrable offender does not have a knowledge of the English language that is sufficient to enable the person to understand the matters referred to in subsection (11) or (13), the person informing the offender must arrange for the presence of a competent interpreter and defer the giving of the information until the interpreter is present.
S. 464ZFAC inserted by No. 3/2019 s. 62.
464ZFAC Senior police officer authorisation—to take DNA profile sample from certain adults
DNA offence means—
(a) an indictable offence or an offence specified in Schedule 8; or
(b) any offence of conspiracy to commit, incitement to commit or attempting to commit an indictable offence or an offence specified in Schedule 8.
(2) A senior police officer may authorise the taking of a DNA profile sample from a person if—
(a) the person—
(i) is found guilty of a DNA offence; or
(ii) is found not guilty of a DNA offence, other than an offence heard and determined summarily, because of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and
(b) it is not more than 6 months after—
(i) the final determination of an appeal against the conviction or the verdict of not guilty because of mental impairment (as the case requires); or
(ii) the expiration of any appeal period; and
(c) the person is not under the age of 18 years at the time—
(i) the finding of guilt for the DNA offence is made; or
(ii) the finding of not guilty for the DNA offence because of mental impairment is made; and
(d) the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely.
(3) An authorisation given for a sample to be taken from a person referred to in subsection (2)(a)(i) before the appeal period in relation to a conviction for the DNA offence has expired or an appeal against the conviction (if any) has been finally determined (whichever is the later), must not be carried out unless—
(a) the appeal period expires; or
(b) an appeal against conviction (if any) is finally determined and the conviction for the DNA offence is upheld.
(4) An authorisation given for a sample to be taken from a person referred to in subsection (2)(a)(ii) before the appeal period in relation to the verdict of not guilty because of mental impairment has expired or an appeal against the verdict (if any) has been finally determined (whichever is the later), must not be carried out unless—
(a) the appeal period expires; or
(b) an appeal against the verdict is dismissed.
(5) If leave to appeal against a verdict of not guilty because of mental impairment in respect of a DNA offence is sought after the expiry of the appeal period in relation to the verdict, an authorisation for a sample to be taken from a person referred to in subsection (2)(a)(ii) before leave to appeal is sought, if not carried out before that leave is sought, must not be carried out unless—
(a) leave to appeal against the verdict is refused; or
(b) leave to appeal against the verdict is granted but the appeal is dismissed.
(6) If leave to appeal against a conviction for a DNA offence is sought after the expiry of the appeal period in relation to the conviction, an authorisation for a sample to be taken from a person referred to in subsection (2)(a)(i) before leave to appeal is sought, if not carried out before that leave is sought, must not be carried out unless—
(a) leave to appeal against the conviction is refused; or
(b) leave to appeal against the conviction is granted and the appeal is finally determined and the conviction for the DNA offence is upheld.
(7) If an authorisation for a sample to be taken from a person referred to in subsection (2)(a) has been carried out after the expiry of the appeal period in relation to the conviction for the DNA offence or the verdict of not guilty for the DNA offence because of mental impairment and leave to appeal against the conviction or the verdict (as the case requires) is granted after the expiry of that period—
(a) any sample and any related material and information taken may be retained by a police officer but must not be used for any purpose pending the final determination of the appeal against the conviction or the verdict; and
(b) if, on appeal, the conviction or the verdict is set aside, the Chief Commissioner of Police must, without delay, destroy or cause to be destroyed any sample taken and any related material and information.
(8) If on appeal a conviction for the DNA offence or the verdict of not guilty for the DNA offence because of mental impairment (as the case requires) is set aside, an authorisation for a sample to be taken from a person in respect of the DNA offence ceases to have effect.
(9) An authorisation given under this section must be in writing signed by the senior police officer giving it.
S. 464ZFAD inserted by No. 3/2019 s. 62.
464ZFAD Notice to attend—to take DNA profile sample from certain adults
relevant person means a person other than a person who is a detained or protected person.
(2) If a senior police officer authorisation for a DNA profile sample to be taken from a relevant person is given, a notice to attend must be attached to the authorisation and served on the person, that requires the person to attend a police station specified in the notice to have the DNA profile sample taken, within 28 days after the expiry of the period referred to in section 464ZFAC(3) or (4) (as the case requires) or the date of service of the notice (whichever is the later).
(3) A notice under subsection (2) must state—
(a) the date on which the senior police officer authorisation was given; and
(b) the kind of DNA profile sample that is to be taken from the person; and
(c) the name, rank and telephone number of the senior police officer who gave the senior police officer authorisation; and
(d) the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely; and
(e) that if the person fails to comply with the notice, an application for a warrant to arrest the person may be made without further notice to the person; and
(f) that the person may wish to seek legal advice as to the effect of the notice; and
(g) the name, rank and telephone number of the police officer serving the notice or causing the notice to be served; and
(h) that a police officer may use reasonable force to enable the sample to be taken.
(4) A notice under subsection (2) must be served in accordance with section 464ZFAA(4) and (5).
(5) Section 464ZFAA(6), (7) and (8) apply to a notice served under subsection (2) as if it were a notice served under that section.
(6) If a notice under subsection (2) is not served within the period referred to in section 464ZFAC(2)(b), a police officer may, within 28 days of the expiry of that period, apply to a magistrate or registrar of the Magistrates' Court for a warrant under subsection (7).
(7) On an application referred to in subsection (6) being made a magistrate or a registrar may, if satisfied by evidence on oath or by affidavit that the notice was not served on the relevant person, issue a warrant authorising the person to whom it is directed, if necessary—
(a) to break, enter and search by day or by night any place where the relevant person named in the warrant is suspected to be; and
(b) to arrest the relevant person; and
(c) to detain the relevant person for as long as reasonably permits for the DNA profile sample to be taken.
(8) A magistrate or a registrar must not issue a warrant under subsection (7) unless satisfied by evidence on oath or by affidavit that—
(a) reasonable attempts have been made to serve the notice on the relevant person; and
(b) the DNA profile sample has not been taken from the relevant person.
(9) Section 464ZFA(2), (3), (4), (5), (6) and (7) apply to a warrant issued under subsection (7) as if it were a warrant issued under section 464ZFA(1B).
S. 464ZFAE inserted by No. 3/2019 s. 62.
464ZFAE Senior police officer may authorise taking a DNA profile sample from certain adults and children who have previously provided a sample
(1) A senior police officer, on request from a police officer, may authorise the taking of a DNA profile sample from a person if the senior police officer is satisfied that—
(a) a sample for the purpose of deriving a DNA profile was previously taken from the person—
(i) in accordance with an order made by a court under section 464T, 464U, 464V, 464ZF or 464ZFAAA; or
(ii) in accordance with section 464SC, an authorisation given under section 464SE, a direction given under section 464ZFAB or a senior police officer authorisation; and
(b) a forensic scientist has not derived a DNA profile from the sample taken from the person.
(2) A senior police officer may serve, or may cause to be served, a notice on a person referred to in subsection (1) directing the person to attend at a police station specified in the notice within 28 days after service of the notice to take a DNA profile sample.
(3) A notice under subsection (2) must state—
(a) the date on which the senior police officer authorisation was given; and
(b) the kind of DNA profile sample that is to be taken from the person; and
(c) the name, rank and telephone number of the senior police officer who gave the authorisation; and
(d) that the Chief Commissioner of Police does not have a DNA profile of the person; and
(e) that a DNA profile was not able to be derived by a forensic scientist from the sample given by the person—
(i) in accordance with an order made by a court under section 464T, 464U, 464V, 464ZF or 464ZFAAA; or
(ii) in accordance with section 464SC, an authorisation given under section 464SE, a direction given under section 464ZFAB or a senior police officer authorisation; and
(f) that if the person fails to comply with the notice, application for a warrant to arrest the person may be made without further notice to the person; and
(g) that the person may wish to seek legal advice as to the effect of the notice; and
(h) the name, rank and telephone number of the police officer serving the notice or causing the notice to be served; and
(i) that a police officer may use reasonable force to enable the DNA profile sample to be taken.
(4) A notice under subsection (2) must be served by delivering a true copy of the notice to the person personally.
(5) Section 464ZFAA(6), (7) and (8) apply to a notice served under subsection (2) as if it were a notice served under that section.
S. 464ZFA (Heading) inserted by No. 27/2006 s. 10(1).
S. 464ZFA inserted by No. 81/1997
464ZFA Warrants issued for forensic procedures under section 464ZF or 464ZFAAA
S. 464ZFA(1) substituted by No. 27/2006 s. 10(2), amended by No. 48/2006 s. 42(Sch. item 9.3).
(1)(a) amended by No. 26/2014 s. 455(Sch. item 7.5).
(a) before a court makes an order under section 464ZF(3) directing a person to undergo a forensic procedure, that person has been released from the prison, police gaol, youth justice centre or designated mental health service where he or she was serving a term of imprisonment or a period of detention at the time the application for the order was made; or
(b) a person fails to attend the hearing of an application under section 464ZFAAA(2) for an order directing the person to undergo a forensic procedure—
the court may issue a warrant authorising the person to whom it is directed, if necessary—
(c) to break, enter and search by day or by night any place where the person named in the warrant is suspected to be; and
(e) to bring the person before the court for the hearing of the application; and
(f) if that application is granted, to detain the person for as long as reasonably permits the conduct of the forensic procedure.
S. 464ZFA(1A) inserted by No. 16/2002 s. 12(1), amended by Nos 27/2006 s. 10(3), 20/2011 s. 5(1), 37/2014 s. 10(Sch. item 36.36(a)).
(1A) If a court makes an order under section 464ZF(2) or 464ZFAAA(2) directing a person to undergo a forensic procedure and the person does not comply with a direction referred to in section 464ZF(2A) or 464ZFAAA(9), as the case may be, a police officer may apply to a magistrate or a registrar of the Magistrates' Court for a warrant under subsection (1B).
S. 464ZFA(1B) inserted by No. 16/2002 s. 12(1), amended by Nos 27/2006 s. 10(4), 6/2018 s. 68(Sch. 2 item 35.10).
(1B) If a magistrate or a registrar to whom such an application is made is satisfied by evidence on oath or by affirmation or affidavit that the person has not complied with a direction referred to in section 464ZF(2A) or 464ZFAAA(9), the magistrate or registrar may issue a warrant authorising the person to whom it is directed, if necessary—
(a) to break, enter and search by day or by night any place where the person named in the warrant is suspected to be; and
(b) to arrest the person; and
(c) to detain the person for as long as reasonably permits the conduct of the forensic procedure.
S. 464ZFA(2) amended by No. 16/2002 s. 12(2)(a).
(2) A warrant issued under subsection (1) or (1B) may be directed to—
(2)(a) amended by No. 37/2014 s. 10(Sch. item 36.36 (b)(i)).
(a) a named police officer; or
(2)(b) amended by No. 37/2014 s. 10(Sch. item 36.36(b)(ii)).
(b) generally all police officers.
S. 464FA(3) amended by Nos 16/2002 s. 12(2)(b), 37/2014 s. 10(Sch. item 36.36(c)).
(3) A warrant issued under subsection (1) or (1B) directed to a named police officer may be executed by any police officer.
S. 464ZFA(4) amended by No. 16/2002 s. 12(2)(c)(i).
(4) If a court issues a warrant under subsection (1) or a magistrate or registrar issues a warrant under subsection (1B), the court, magistrate or registrar must—
(4)(a) amended by No. 16/2002 s. 12(2)(c)(ii).
(a) give reasons for the decision; and
S. 464ZFA(5) amended by No. 16/2002 s. 12(2)(d)(i)(ii).
(5) A failure of a court, magistrate or registrar to comply with subsection (4) does not invalidate any order made by the court, magistrate or registrar but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464ZFA(6) amended by No. 16/2002 s. 12(2)(e).
(6) If a person is arrested under a warrant issued under subsection (1) or (1B), the warrant ceases to have effect immediately after the procedure is completed or on the expiration of a reasonable time (whichever is the earlier).
S. 464ZFA(7) inserted by No. 16/2002 s. 12(3), amended by No. 37/2014 s. 10(Sch. item 36.36(d)(i)).
(7) A police officer who executes a warrant issued under subsection (1B) must, as soon as practicable after executing the warrant—
(a) endorse the warrant to that effect; and
(7)(b) amended by No. 37/2014 s. 10(Sch. item 36.36(d)(ii)).
(b) cause to be lodged with a registrar of the Magistrates' Court a report signed by the police officer and containing particulars of—
(i) the date and time at which the person was arrested;
(ii) the date and time at which the person was released from custody;
(iii) the date, time and place at which the forensic procedure was conducted;
(iv) the name and position of the person who conducted the forensic procedure and every other person present;
(v) the type of sample taken;
(vi) whether reasonable force was used to enable the forensic procedure to be conducted.
S. 464ZFB (Heading) inserted by No. 27/2006 s. 11(1).
S. 464ZFB inserted by No. 81/1997
464ZFB Retention of information following finding of guilt etc.
(1AA) inserted by No. 72/2013 s. 11(1).
(1AA) If—
S. 464ZFB (1AA)(a) substituted by No. 3/2019 s. 63(1).
(a) a DNA profile sample is taken or a forensic procedure is conducted on a person of or above the age of 18 years in accordance with section 464R, 464SA, 464SC, 464SE, 464T(3) or 464V(5); and
(b) a court finds the person guilty, or not guilty because of mental impairment, of—
S. 464ZFB (1AA)(b)(i) amended by No. 3/2019 s. 63(2)(a).
(i) the indictable offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii) any other indictable offence arising out of the same circumstances; or
S. 464ZFB (1AA)(b)(iii) amended by No. 3/2019 s. 63(2)(b).
(iii) any other indictable offence in respect of which evidence obtained as a result of the DNA profile sample or the forensic procedure had probative value—
the sample taken and any related material and information may be retained indefinitely.
(1AB) inserted by No. 72/2013 s. 11(1).
(1AB) Subsection (1AA) does not apply if—
(a) on appeal against conviction, the finding of guilt or conviction referred to in subsection (1AA) is set aside; or
(b) on appeal against the verdict of not guilty because of mental impairment, the verdict referred to in subsection (1AA) is set aside.
S. 464ZFB(1) amended by Nos 16/2002 s. 13(1)(a)(b), 14/2006 s. 14(a), 72/2013 s. 11(2)(c), 37/2014 s. 10(Sch. item 36.37).
(1) If at any time on or after the commencement of section 26 of the Crimes (Amendment) Act 1997—
S. 464ZFB (1)(a) amended by No. 41/2004 s. 17, substituted by No. 72/2013 s. 11(2)(a), amended by No. 3/2019 s. 63(3)(a).
(a) a DNA profile sample is taken from a DNA person who is a child in accordance with section 464SC or 464SE or a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and
(1)(b) amended by No. 72/2013 s. 11(2)(b).
(b) a court finds the child guilty of—
(1)(b)(i) amended by No. 3/2019 s. 63(3)(b).
(i) the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii) any other offence arising out of the same circumstances; or
(1)(b)(iii) amended by No. 3/2019 s. 63(3)(c).
(iii) any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value—
a police officer, at any time after the finding of guilt but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence (whichever is the later), may apply to the court referred to in paragraph (b) or to the Children's Court for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
S. 464ZFB(1A) inserted by No. 27/2006 s. 11(2), amended by No. 37/2014 s. 10(Sch. item 36.37).
(1A) If—
(1A)(a) substituted by No. 72/2013 s. 11(3)(a), amended by No. 3/2019 s. 63(4)(a).
(a) a DNA profile sample is taken from a DNA person who is a child in accordance with section 464SC or 464SE or a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and
(1A)(b) amended by No. 72/2013 s. 11(3)(b).
(b) a court finds the child not guilty because of mental impairment of—
(1A)(b)(i) amended by No. 3/2019 s. 63(4)(b).
(i) the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii) any other offence arising out of the same circumstances; or
(1A)(b)(iii) amended by No. 3/2019 s. 63(4)(c).
(iii) any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value—
a police officer, at any time after the verdict of not guilty because of mental impairment, but not later than 6 months after the final determination of an appeal against the verdict or the expiry of any appeal period in respect of the verdict (whichever is the later), may apply to the court referred to in paragraph (b) for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
S. 464ZFB(1B) inserted by No. 27/2006 s. 11(2), amended by No. 68/2009 s. 97(Sch. item 40.38).
(1B) Subsection (1A) does not apply to an offence heard and determined summarily.
S. 464ZFB(2) amended by No. 27/2006 s. 11(3)(a).
(2) A court hearing an application under subsection (1) or (1A)—
S. 464ZFB (2)(a) amended by No. 27/2006 s. 11(3)(b).
(a) must take into account the seriousness of the circumstances of the offence in determining whether to make the order under subsection (1) or (1A), as the case requires; and
(2)(c) amended by No. 6/2018 s. 68(Sch. 2 item 35.11).
S. 464ZFB(2A) inserted by No. 16/2002 s. 13(2), amended by No. 14/2006 s. 14(b)(i)(ii).
(2A) An order made under subsection (1) before the expiry of the appeal period in respect of the conviction for the offence or the final determination of an appeal against conviction (whichever is the later)—
(a) takes effect on that expiry or final determination; and
S. 464ZFB (2A)(b) amended by Nos 14/2006 s. 14(b)(ii), 68/2009 s. 97(Sch. item 40.39) (as amended by No. 29/2011 s. 3(Sch. 1 item 25.1)).
(b) has no effect if, on appeal against conviction, the finding of guilt or conviction is set aside.
S. 464ZFB(2B) inserted by No. 27/2006 s. 11(4).
(2B) An order made under subsection (1A) before the expiry of the appeal period in respect of the verdict of not guilty because of mental impairment or the final determination of an appeal against the verdict (whichever is later)—
(a) takes effect on that expiry or final determination; and
(b) has no effect if, on appeal, the verdict of not guilty because of mental impairment is set aside.
S. 464ZFB(3) amended by No. 27/2006 s. 11(5).
(3) If a court makes an order under subsection (1) or (1A), it must give reasons for its decision and cause a copy of the order and reasons to be served on the person on whom the forensic procedure was conducted.
(4) A failure of a court to comply with subsection (3) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464ZFC (Heading) inserted by No. 27/2006 s. 12(1).
S. 464ZFC inserted by No. 81/1997
464ZFC Destruction of information following finding of guilt etc.
(1) Subject to section 464ZFD(2), if—
(1)(aa) inserted by No. 72/2013 s. 12(a).
(aa) a finding of guilt, a conviction or a verdict of not guilty because of mental impairment referred to in section 464ZFB(1AA) is set aside on appeal; or
(1)(ab) inserted by No. 25/2017 s. 54.
(ab) the finding of guilt of a registrable offender within the meaning of section 3(1) of the Sex Offenders Registration Act 2004 is quashed or set aside on appeal and, but for that offence, the person would not be a registrable offender; or
S. 464ZFC (1)(a) amended by Nos 27/2006 s. 12(2), 37/2014 s. 10(Sch. item 36.37).
(a) a police officer does not make an application under section 464ZFB(1) or (1A) within the period specified by that subsection; or
(1)(b) amended by No. 72/2013 s. 12(b).
(b) a court refuses to make an order under section 464ZFB(1) or (1A)—
the Chief Commissioner of Police must without delay destroy, or cause to be destroyed, any sample taken and any related material and information.
(2) If a sample or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the procedure was conducted so requests, within 14 days after receiving the request, notify in writing that person of whether the destruction has occurred.
(3) A person who knowingly—
a sample or related material and information required by this section to be destroyed is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
(4) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from, any sample or related material and information required by this section to be destroyed except in good faith for the purposes of section 464ZFD(2) is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZFD (Heading) substituted by No. 32/2007 s. 5(1).
S. 464ZFD inserted by No. 81/1997
464ZFD Victorian DNA database
S. 464ZFD (1AA) inserted by No. 32/2007 s. 5(2).
(1AA) The Chief Commissioner of Police may keep a DNA database system.
S. 464ZFD(1) amended by Nos 27/2006 s. 13, 32/2007 s. 5(3), 25/2017 s. 55, 3/2019 s. 64(1).
(1) Information (including information which may identify the person from whom a DNA profile sample was taken or on whom a forensic procedure was conducted) obtained from the analysis of samples taken or procedures conducted in accordance with sections 464R to 464ZA, section 464ZF, 464ZFAAA or 464ZFAB, 464ZFAC, 464ZFAE or sections 464ZGB to 464ZGD (as the case may be), and which in accordance with this Subdivision may be retained, may be included in the DNA database system kept under subsection (1AA).
S. 464ZFD(2) amended by Nos 16/2002 s. 14, 32/2007 s. 5(4), 3/2019 s. 64(2).
(2) Information (other than information which may identify the person from whom a DNA profile sample was taken or on whom a forensic procedure was conducted) obtained from the analysis of samples taken or procedures conducted in accordance with this Subdivision may be retained and included in the DNA database system kept under subsection (1AA) for statistical purposes.
S. 464ZFE inserted by No. 81/1997
464ZFE Report to Attorney-General
The Chief Commissioner of Police, on or as soon as practicable after 1 January, 1 April, 1 July and 1 October of each year, must submit to the Attorney-General a report that contains—
(a) a list that identifies by a unique identifying number every sample taken in accordance with this Subdivision within the period to which the report relates; and
(b) the date on which every sample listed in the report was taken; and
S. 464ZFE(c) amended by No. 3/2019 s. 65(a).
(c) information on whether any of the samples listed in the report or in any previous report submitted under this section have been destroyed within the period to which the report relates and the reason for the destruction of the sample; and
S. 464ZFE(d) amended by No. 41/2004 s. 18(a), substituted by No. 3/2019 s. 65(b).
(d) if a sample has been destroyed, the date that the requirement to destroy it arose, the date of destruction and the name of the person who has destroyed it; and
S. 464ZFE(da) inserted by No. 3/2019 s. 65(b).
(da) information on any DNA profile sample that has been retained for 12 months or more including the status of any investigation of the DNA person from whom the sample was taken; and
S. 464ZFE(db) inserted by No. 3/2019 s. 65(b).
(db) information on forensic material taken from suspects in accordance with section 464R, 464T or 464U that has been retained for 12 months or more including the status of any investigation of the suspect from whom the forensic material was taken; and
S. 464ZFE(e) inserted by No. 41/2004 s. 18(b), amended by No. 3/2019 s. 65(c).
(e) the number of authorisations given under sections 464SA and 464SE within the period to which the report relates; and
S. 464ZFE(f) inserted by No. 41/2004 s. 18(b), amended by No. 3/2019 s. 65(d).
(f) the number of authorisations refused to be given under sections 464SA and 464SE within the period to which the report relates.
S. 464ZG inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.
464ZG Destruction of identifying information
(1) In this section, relevant offence means—
S. 464ZG(1)(a) amended by Nos 72/2013 s. 13, 3/2019 s. 66(a).
(a) the indictable offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
S. 464ZG(1)(b) amended by No. 72/2013 s. 13.
(b) any other indictable offence arising out of the same circumstances; or
S. 464ZG(1)(c) amended by Nos 72/2013 s. 13, 3/2019 s. 66(b).
(c) any other indictable offence in respect of which the evidence obtained as a result of the DNA profile sample or the forensic procedure has probative value.
S. 464ZG(2) repealed by No. 81/1997
s. 27(1).
S. 464ZG(3) amended by Nos 81/1997
s. 27(2)(a)(c), 3/2019 s. 66(c).
(3) Subject to section 464ZFD(2), if a DNA profile sample has been taken or a forensic procedure has been conducted on a person and—
S. 464ZG(3)(a) amended by Nos 81/1997
s. 27(2)(b), 3/2019 s. 66(d).
(a) the person has not been charged with a relevant offence at the end of the period of 12 months after the taking of the sample or the conduct of the procedure; or
S. 464ZG(3)(b) amended by No. 27/2006 s. 14.
(b) the person has been so charged but the charge is not proceeded with or the person is not found guilty (except because of mental impairment) of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period—
the Chief Commissioner of Police, subject to subsection (5), must destroy, or cause to be destroyed, at the time specified in subsection (4) any sample taken and any related material and information.
S. 464ZG(4) amended by No. 81/1997
s. 27(3)(a).
(4) A sample and any related material and information referred to in subsection (3) must be destroyed—
S. 464ZG(4)(a) amended by No. 81/1997
s. 27(3)(b).
(a) in a case to which subsection (3)(a) applies, immediately after that period of 12 months; or
(b) in a case to which subsection (3)(b) applies—
S. 464ZG (4)(b)(i) amended by No. 1/2026 s. 70(3).
(i) within one month after the conclusion of the proceedings and the end of any appeal period; or
S. 464ZG (4)(b)(ii) amended by No. 1/2026 s. 70(3).
(ii) if the proceedings have been adjourned under section 75 of the Sentencing Act 1991, within one month of dismissal under that section.
S. 464ZG(5) amended by No. 37/2014 s. 10(Sch. item 36.37).
(5) A police officer may, before the end of a period referred to in subsection (4), apply, without notice to any other person, to the Magistrates' Court or the Children's Court (as the case requires) for an order extending that period and, if the court makes such an order, the reference to the period in subsection (4) is a reference to that period as so extended.
S. 464ZG(6) amended by No. 3/2019 s. 66(e).
(6) If the Magistrates' Court or the Children's Court makes an order under subsection (5), it must give reasons for its decision and cause a copy of the order to be served on the person from whom the DNA profile sample was taken or on whom the forensic procedure was conducted.
S. 464ZG(7) substituted by No. 81/1997
s. 27(4).
(7) If a sample or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the procedure was conducted so requests, within 14 days after receiving the request, notify in writing that person of whether the destruction has occurred.
S. 464ZG(8) amended by Nos 69/1997
s. 22(15), 81/1997
s. 27(5)(a)(c).
(8) A person who knowingly—
S. 464ZG(8)(b) amended by No. 81/1997
s. 27(5)(b).
a sample or related material and information required by this section to be destroyed is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZG(9) amended by Nos 69/1997
s. 22(15), 81/1997
s. 27(6)(a)–(c).
(9) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from, any sample or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence or for the purposes of section 464ZFD(2) is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGA inserted by No. 81/1997
464ZGA Forensic information from juveniles
(1) Subject to section 464ZFD(2), if—
S. 464ZGA(1)(a) amended by No. 3/2019 s. 67(1).
(a) a person has a DNA profile sample taken or undergoes a forensic procedure as a child in accordance with this Subdivision, whether before or after the commencement of section 28 of the Crimes (Amendment) Act 1997; and
(b) any sample taken is not required to be destroyed under this Subdivision, other than under this subsection; and
(c) the person is not found guilty of any further offence before attaining the age of 26 years—
the Chief Commissioner of Police must without delay destroy, or cause to be destroyed, any sample taken and any related material and information.
S. 464ZGA(2) amended by Nos 77/2005 s. 8(3)(d), 7/2008 s. 7(3)(f), 63/2014 s. 3(5), substituted by No. 5/2018 s. 9.
(2) Subsection (1) does not apply if—
(a) the person from whom the sample was taken is found guilty of—
S. 464ZGA (2)(a)(i) amended by No. 3/2019 s. 67(2)(a).
(i) the offence in relation to which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii) an offence arising out of the same circumstances as the offence referred to in subparagraph (i); or
S. 464ZGA (2)(a)(iii) amended by No. 3/2019 s. 67(2)(b).
(iii) an offence in respect of which evidence obtained as a result of the DNA profile sample or the forensic procedure had probative value; and
(b) the offence of which the person is found guilty is—
(i) an offence against this Act; or
(ii) an offence at common law the maximum penalty for which is specified by this Act; and
(c) the offence of which the person is found guilty is punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described); and
(d) the sample—
(i) was taken in accordance with an order under section 464ZF(2); or
(ii) is the subject of an order under section 464ZFB(1).
S. 464ZGB inserted by No. 81/1997
464ZGB Samples given voluntarily
S. 464ZGB(1) amended by Nos 72/2004 s. 32, 37/2014 s. 10(Sch. item 36.37).
(1) A person of or above the age of 18 years may volunteer to give a sample (whether an intimate or non-intimate sample) to a police officer.
(2) A sample may only be given under this section if the person volunteering to give it consents in accordance with this section and that consent is not withdrawn prior to the giving of the sample.
S. 464ZGB(3) amended by No. 37/2014 s. 10(Sch. item 36.37).
(3) A person consents in accordance with this section only if, in the presence of an independent person, he or she consents after a police officer has informed the person in language likely to be understood by the person—
(a) that any sample that is given will be analysed;
(3)(b) substituted by No. 16/2002 s. 15.
(b) that information obtained from the analysis will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction;
(3)(ba) inserted by No. 16/2002 s. 15.
(ba) that the person may choose whether the information obtained from analysis of the sample may be used—
(i) only for a limited purpose to be specified by the volunteer; or
(ii) for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction;
(3)(bb) inserted by No. 16/2002 s. 15.
(bb) that information obtained from the analysis could produce evidence to be used in a court;
(c) that the person is under no obligation to give a sample;
(d) that if the person consents to give a sample, he or she may at any time before the sample is taken, withdraw that consent;
(3)(e) amended by No. 72/2013 s. 14.
(e) that the person may consult a legal practitioner (whether the term legal practitioner or lawyer is used) before deciding whether or not to consent to give a sample;
(f) that the person may at any time (including after he or she has been charged with an offence) withdraw his or her consent to the retention of the sample;
(3)(g) amended by No. 37/2014 s. 10(Sch. item 36.37).
(g) that where the person withdraws his or her consent to the retention of the sample, a police officer may nevertheless apply to a court for an order to retain the sample and any related material and information;
(3)(h) amended by No. 13/2010 s. 51(Sch. item 17.10).
(h) that the person may request that the sample be taken by or in the presence of a medical practitioner, nurse, midwife or dentist of his or her choice.
S. 464ZGB(4) amended by No. 37/2014 s. 10(Sch. item 36.37).
(4) A police officer who informs a person of the matters in subsection (3) must—
(a) record the giving of the information and the person's responses, if any—
(i) in writing signed by both the person and the independent person witnessing the giving of the consent; and
(4)(a)(ii) substituted by No. 27/2006 s. 17(30)(a).
(ii) by audiovisual recording, if practicable, or otherwise by audio recording; and
(b) give or send by registered post to the person or his or her legal practitioner, without charge—
(4)(b)(i) amended by No. 27/2006 s. 17(30)(b).
(i) a copy of the audiovisual recording or audio recording as soon as practicable, but not more than 7 days after the information is given; and
(ii) a copy of the written record, signed by both the person and the independent person, forthwith.
S. 464ZGC inserted by No. 81/1997
464ZGC Withdrawal of consent prior to giving sample
S. 464ZGC(1) amended by No. 37/2014 s. 10(Sch. item 36.37).
(1) A person, at any time prior to giving a sample, may withdraw the consent that was given by him or her in accordance with section 464ZGB either—
(a) orally; or
(b) in writing—
to a police officer or to the person authorised to take the sample.
S. 464ZGC(2) amended by No. 37/2014 s. 10(Sch. item 36.37).
(2) If, prior to giving a sample, a person withdraws his or her consent orally, a police officer or the person authorised to take the sample must, as soon as practicable, record in writing the withdrawal of consent.
S. 464ZGD inserted by No. 81/1997
464ZGD Procedure to take sample
(1) The procedure to be conducted to take a sample from a person following the giving of consent in accordance with section 464ZGB must—
(a) be in accordance with the procedure set out in section 464Z; and
S. 464ZGD
(1)(b) amended by No. 27/2006 s. 17(31)(a).
(b) be recorded by audiovisual recording, if practicable, and if the person consents.
S. 464ZGD(2) amended by Nos 27/2006 s. 17(31)(b), 37/2014 s. 10(Sch. item 36.37).
(2) If the taking of a sample voluntarily given by a person is recorded by audiovisual recording, a police officer must—
(a) without charge; and
(b) as soon as practicable but not more than 7 days after the sample was taken—
give or send by registered post a copy of the audiovisual recording to the person who voluntarily gave the sample.
S. 464ZGE inserted by No. 81/1997
464ZGE Safeguards after giving sample
(1) If a person has given his or her consent in accordance with section 464ZGB, and a sample has been taken, that person may at any time after the sample has been taken, by notice in writing to the Chief Commissioner of Police, withdraw his or her consent to the retention of that sample.
(2) Subject to subsection (5) and section 464ZFD(2), if a person has voluntarily given a sample in accordance with sections 464ZGB to 464ZGD and either—
(a) that person in accordance with subsection (1) has withdrawn his or her consent to the retention of that sample; or
(b) a court has made an order under section 464ZGF for the retention of that sample and any related material and information, and—
(i) the person has not been charged with an indictable offence at the end of the period of 12 months after the order of the court; or
(ii) the person has been so charged but the charge is not proceeded with, or the person is not found guilty of the indictable offence or any other indictable offence for which the sample and any related material and information had probative value, whether on appeal or otherwise, before the end of that period—
the Chief Commissioner of Police, at the time specified in subsection (3), must destroy, or cause to be destroyed, any sample given and any related material and information.
(3) A sample and any related material and information referred to in subsection (2) must be destroyed—
(a) within 28 days after the receipt of the person's notice of withdrawal of consent under subsection (1); or
(b) in a case to which subsection (2)(b)(i) applies, immediately after that period of 12 months; or
(c) in a case to which subsection (2)(b)(ii) applies—
S. 464ZGE (3)(c)(i) amended by No. 1/2026 s. 70(4).
(i) within one month after the conclusion of the proceedings and the end of any appeal period; or
S. 464ZGE (3)(c)(ii) amended by No. 1/2026 s. 70(4).
(ii) if the proceedings have been adjourned under section 75 of the Sentencing Act 1991, within one month after dismissal under that section.
(4) The Chief Commissioner of Police is not required to comply with the requirements in subsections (2) and (3) to destroy or cause to be destroyed a sample and any related material and information by reason of the person's withdrawal of consent if the Magistrates' Court makes an order under section 464ZGF for the retention of that sample and any related material and information.
(5) If the Magistrates' Court refuses to make an order under section 464ZGF for the retention of a sample and any related material and information, and a person in accordance with subsection (1) has withdrawn his or her consent to the retention of that sample, the Chief Commissioner of Police must immediately destroy, or cause to be immediately destroyed, the sample given and any related material and information.
S. 464ZGE(6) amended by No. 37/2014 s. 10(Sch. item 36.37).
(6) A police officer may, before the end of a period referred to in subsection (3)(b) or (3)(c), apply, without notice to any other person, to the Magistrates' Court for an order extending that period and, if the court makes such an order, the reference to the period in subsection (3)(b) or (3)(c) is a reference to that period as so extended.
(7) If the Magistrates' Court makes an order under subsection (6), it must give reasons for its decision and cause a copy of the order to be served on the person who voluntarily gave the sample.
(8) If a sample or related material and information is destroyed in accordance with this section, the Chief Commissioner of Police must, within 14 days, give notice of the destruction to the person who voluntarily gave the sample.
(9) A person who knowingly—
a sample or related material and information required by this section to be destroyed is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
(10) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any sample or related material and information required by this section to be destroyed except in good faith for the purposes of section 464ZFD(2) is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGE(11) amended by No. 37/2014 s. 10(Sch. item 36.37).
(11) This section does not prevent a police officer, in respect of a person who has voluntarily given a sample under sections 464ZGB to 464ZGD—
(a) requesting, under section 464R, the person to undergo a forensic procedure; or
S. 464ZGE (11)(ab) inserted by No. 3/2019
s. 68.
(ab) requesting, under section 464SC, the person to give a DNA profile sample; or
S. 464ZGE (11)(ac) inserted by No. 3/2019
s. 68.
(ac) making an authorisation under section 464SE for the taking of a DNA profile sample from the person; or
(b) making an application under section 464T or 464V for a court order directing the person to undergo a compulsory procedure.
S. 464ZGE(12) repealed by No. 80/1998
s. 3(e).
S. 464ZGF inserted by No. 81/1997
464ZGF Application to court where consent to retention of sample withdrawn
S. 464ZGF(1) amended by No. 37/2014 s. 10(Sch. item 36.37).
(1) A police officer may apply to the Magistrates' Court for an order to retain a sample that has been voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, and any related material and information, and the court may make an order accordingly, if during an investigation into the commission of an indictable offence—
(a) either—
(i) material reasonably believed to be from the body of a person who committed the indictable offence has been found—
(B) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
S. 464ZGF(1)
(a)(ii) amended by No. 37/2014 s. 10(Sch. item 36.37).
(ii) if the offence is an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I, and a police officer reasonably believes that a child has been conceived as a result of the commission of the offence and a sample has been taken from that child; and
S. 464ZGF
(1)(b) amended by No. 37/2014 s. 10(Sch. item 36.37).
(b) a police officer reasonably believes that information obtained from the analysis of the sample voluntarily given by the person, and from any related material and information, has probative value in relation to the indictable offence being investigated; and
(c) the person who voluntarily gave that sample has withdrawn his or her consent to the retention of that sample; and
(d) the information obtained from the analysis of the voluntary sample, and from any related material and information, has not been destroyed in accordance with section 464ZGE(2)(a) and (3)(a).
(2) A court hearing an application under subsection (1) must—
(a) be satisfied on the balance of probabilities that there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and
(b) be satisfied that, in all the circumstances, the making of the order is justified.
(3) If the court makes an order under subsection (1), it must give reasons for its decision and cause a copy of the order and reasons to be served on the person who voluntarily gave the sample.
(4) A failure of a court to comply with subsection (3) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464ZGFA inserted by No. 72/2013 s. 15.
464ZGFA Voluntary samples given by police or VIFM personnel
S. 464ZGFA(1) def. of Institute amended by No. 34/2024 s. 50(1).
Institute means the Victorian Institute of Forensic Medicine established under the Victorian Institute of Forensic Medicine Act 2024;
relevant agency means—
(a) Victoria Police; or
(b) the Institute.
(2) Any of the following persons may volunteer to give to a relevant agency a sample of material from which a DNA profile may be derived—
(2)(a) substituted by No. 37/2014 s. 10(Sch. item 36.38(a)).
(a) a member of Victoria Police personnel;
S. 464ZGFA (2)(b) substituted by No. 34/2024 s. 50(2).
(b) the Chief Executive Officer of the Institute or a person employed under section 30 or 31 of the Victorian Institute of Forensic Medicine Act 2024;
(c) a visitor to—
(i) any premises at which the Victoria Police Forensic Services Department performs functions; or
(ii) any premises at which the Institute performs any of its functions.
(3) A sample may only be given under this section if the relevant agency has provided to the person volunteering to give the sample—
(a) a written statement that the sample is to be provided for the purpose of comparing a DNA profile obtained from the sample against any other DNA profile held by the relevant agency to eliminate the person as a possible source of DNA in—
(i) the investigation of a crime; or
(ii) the investigation of a reportable death within the meaning of the Coroners Act 2008; or
(iii) in the case of the Institute, testing conducted by the Institute in the performance of its objects and functions; and
(b) a written statement of the requirements of section 464ZGFB(3) and (5).
(4) A sample given under this section may be used only for the purpose referred to in subsection (3)(a).
(5) Evidence of a sample given by a person under this section and any DNA profile obtained from the sample is inadmissible as evidence against the person, unless the person consents to the admission of the evidence, in—
(a) any proceeding, whether civil or criminal; or
(5)(b) amended by No. 37/2014 s. 10(Sch. item 36.38(b)(i)).
(b) a proceeding arising out of, or connected with, an investigation under Division 6 of Part 4, Part 5, Part 7, Part 9 or Part 10 of the Victoria Police Act 2013 in respect of the person; or
(5)(c) amended by No. 37/2014 s. 10(Sch. item 36.38(b)(ii)).
(c) a proceeding arising out of, or connected with, a critical incident (within the meaning of section 82 of the Victoria Police Act 2013).
(6) In subsection (5) a proceeding includes a coronial inquest or inquiry.
(7) A sample given under this section and any DNA profile obtained from the sample may not be released to any person outside the relevant agency unless the person who gave the sample consents to the release.
(8) A person must not knowingly use, or cause or permit to be used, or otherwise disseminate information derived from, a sample given under this section, any DNA profile obtained from the sample or any related information, other than in accordance with this section.
Penalty: level 8 imprisonment (1 year maximum).
(9) An offence against subsection (8) is a summary offence.
(10) This section does not affect any other power to require a person referred to in subsection (2) to provide a sample or to undergo a forensic procedure.
S. 464ZGFB inserted by No. 72/2013 s. 15.
464ZGFB Destruction of samples given by police and VIFM personnel and storage of DNA information
(1) The Chief Commissioner of Police is responsible for ensuring the destruction under this section of samples and DNA profiles that are held or managed by Victoria Police.
S. 464ZGFB(2) amended by No. 34/2024 s. 51(1).
(2) The Chief Executive Officer of the Institute is responsible for ensuring the destruction under this section of samples and DNA profiles that are held or managed by the Institute.
(3) A DNA profile derived from a sample given under section 464ZGFA must be stored on a database that—
(a) is not a DNA database; and
(b) is not connected to any other database on which matching of DNA profiles occurs.
1 DNA database is defined in section 464(2).
2 A sample given under section 464ZGFA must not be entered in NCIDD.
S. 464ZGFB(4) amended by No. 3/2019 s. 69.
(4) A sample given under section 464ZGFA and a DNA profile derived from the sample must be destroyed if—
(4)(a) amended by No. 37/2014 s. 10(Sch. item 36.39(a)).
(a) in the case of a sample given by the Chief Commissioner of Police, the Chief Commissioner requests the destruction of the sample by notice in writing to the Minister administering the Victoria Police Act 2013; or
(4)(b) amended by No. 37/2014 s. 10(Sch. item 36.39(b)).
(b) in the case of a sample given by any other member of Victoria Police personnel or a visitor to any premises at which the Victoria Police Forensic Services Department performs functions, the member or visitor requests the destruction of the sample by notice in writing to the Chief Commissioner of Police; or
S. 464ZGFB (4)(c) amended by No. 34/2024 s. 51(2)(a).
(c) in the case of a sample given by the Chief Executive Officer of the Institute, the Chief Executive Officer requests the destruction of the sample by notice in writing to the Attorney-General; or
S. 464ZGFB (4)(d) amended by No. 34/2024 s. 51(2)(b).
(d) in the case of a sample given by an employee of the Institute or a visitor to any premises at which the Institute performs any of its functions, the employee or visitor requests the destruction of the sample by notice in writing to the Chief Executive Officer of the Institute; or
(4)(e) amended by Nos 37/2014 s. 10(Sch. item 36.39(b)), 34/2024 s. 51(2)(b).
(e) 12 months have elapsed since the person who gave the sample ceased to be a member of Victoria Police personnel, the Chief Executive Officer of the Institute or an employee of the Institute, as the case may be.
(5) Without affecting any other arrangements for destruction of samples, this section also applies, on and from its commencement, to a sample given voluntarily by a person referred to in section 464ZGFA(2) before the commencement of this section.
(6) A person must not knowingly—
(a) fail to destroy; or
(b) use, or cause or permit to be used, or otherwise disseminate information derived from—
a sample, or a DNA profile derived from a sample, that is required by this section to be destroyed.
Penalty: level 8 imprisonment (1 year maximum).
(7) An offence against subsection (6) is a summary offence.
Heading preceding s. 464ZGFC inserted by No. 32/2024 s. 810.
Destruction of identifying information for children under 12 years of age
S. 464ZGFC inserted by No. 32/2024 s. 810.
464ZGFC Destruction of fingerprints for children under 12 years of age
(1) This section applies despite anything to the contrary in this Subdivision.
(2) Subject to subsection (3), within 12 months of the commencement of Part 1.2 of the Youth Justice Act 2024, the Chief Commissioner of Police must destroy or cause to be destroyed—
(a) any fingerprint taken from a person under this Subdivision in respect of the commission or alleged commission of an offence by the person when the person was under 12 years of age; and
(b) any record, copy or photograph of that fingerprint.
(3) The Chief Commissioner of Police is not required to destroy or cause to be destroyed a person's fingerprint referred to in subsection (2)(a) or a record, copy or photograph of that fingerprint if the person has died.
(4) If a person's fingerprint and any record, copy or photograph of that fingerprint is required by this section to be destroyed, the Chief Commissioner of Police, on the request of that person, must notify the person in writing as to whether that fingerprint and other information has been destroyed.
(5) Notice under subsection (4) must be given within 14 days after the Chief Commissioner of Police receives the person's request.
(6) A person must not knowingly fail to destroy a fingerprint, or record, copy or photograph of a fingerprint, that is required by this section to be destroyed.
(7) A person must not knowingly use, or cause or permit to be used, or otherwise disseminate information derived from a fingerprint, or record, copy or photograph of a fingerprint, that is required by this section to be destroyed.
(8) An offence against subsection (6) or (7) is a summary offence.
destroy includes—
(a) physically destroy; and
(b) permanently de-identify information which identifies the person from whom the fingerprint was taken; and
(c) permanently de-identify information from which the person's identity may be ascertained;
fingerprints includes a fingerscan taken under this Subdivision.
S. 464ZGFD inserted by No. 32/2024 s. 810.
464ZGFD Destruction of samples and other identifying information for children under 12 years of age
(1) This section applies despite anything to the contrary in this Subdivision.
(2) Subject to section 464ZFD(2), within 12 months of the commencement of Part 1.2 of the Youth Justice Act 2024, the Chief Commissioner of Police must destroy or cause to be destroyed any of the following taken from a person under this Subdivision in respect of the commission or alleged commission of an offence by the person when the person was under 12 years of age—
(a) any sample taken from the person in a forensic procedure and any related material and information;
(b) any DNA profile sample taken from the person and any related material and information;
(c) any other sample taken from the person and any related material and information.
(3) If a person's sample and any related material and information is required by this section to be destroyed, the Chief Commissioner of Police, on the request of that person, must notify the person in writing as to whether that sample and related material and information has been destroyed.
(4) Notice under subsection (3) must be given within 14 days after the Chief Commissioner of Police receives the person's request.
(5) A person must not knowingly fail to destroy a sample or any related material and information that is required by this section to be destroyed.
(6) A person must not knowingly use, or cause or permit to be used, or otherwise disseminate information derived from a sample or any related material and information that is required by this section to be destroyed, except in good faith for the purposes of section 464ZFD(2).
(7) An offence against subsection (5) or (6) is a summary offence.
Heading preceding s. 464ZGG inserted by No. 16/2002 s. 16, amended by No. 32/2007 s. 6.
DNA database systems
S. 464ZGG inserted by No. 16/2002 s. 16.
464ZGG Supply of forensic material for purposes of DNA database
S. 464ZGG(1) def. of excluded forensic material amended by Nos 27/2006 s. 15, 3/2019 s. 70.
excluded forensic material means forensic material—
(a) found at a crime scene; or
(b) taken from a suspect in accordance with this Subdivision or under a corresponding law of a participating jurisdiction; or
(ba) taken from a DNA person in accordance with section 464SC or 464SE; or
(bb) taken from a person in accordance with section 464ZFAC; or
(bc) taken from a person in accordance with section 464ZFAE; or
(c) taken from an offender under section 464ZF or 464ZGB or under a corresponding law of a participating jurisdiction; or
(ca) taken from a person under section 464ZFAAA following a finding of not guilty because of mental impairment; or
(d) taken from the body of a deceased person; or
(e) 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;
prohibited analysis means analysis for the purpose of deriving a DNA profile for inclusion on a DNA database when the forensic material is required to be destroyed by this Subdivision or under a corresponding law of a participating jurisdiction.
(2) A person—
(a) whose conduct causes the supply of forensic material taken from a person under this Subdivision (or under a corresponding law of a participating jurisdiction) to a person for prohibited analysis; and
(b) who intends or is reckless as to the supply of material of that kind—
is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
(3) A person—
(a) whose conduct causes the supply of forensic material (other than excluded forensic material) to a person for analysis for the purpose of deriving a DNA profile for inclusion on a DNA database; and
(b) who intends or is reckless as to the supply of material of that kind—
is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGH (Heading) amended by No. 32/2007 s. 7(1).
S. 464ZGH inserted by No. 16/2002 s. 16.
464ZGH Use of information on Victorian DNA database
S. 464ZGH(1) amended by No. 32/2007 s. 7(1).
(1) A person who accesses information stored on the Victorian DNA database except in accordance with this section is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGH(2) amended by No. 32/2007 s. 7(1).
(2) A person may access information stored on the Victorian DNA database for one or more of the following purposes—
(a) forensic comparison permitted under section 464ZGI (permissible matching);
(b) making the information available, in accordance with the regulations, to the person to whom the information relates;
S. 464ZGH (2)(c) amended by No. 32/2007 s. 7(1).
(c) administering the Victorian DNA database;
S. 464ZGH (2)(d) substituted by No. 32/2007 s. 7(2).
(d) in accordance with an arrangement entered into under section 464ZGN;
(e) in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth or the Extradition Act 1988 of the Commonwealth;
(f) a coronial investigation or inquest;
(g) an investigation of a complaint by—
S. 464ZGH (2)(g)(i) substituted by No. 60/2014 s. 140(Sch. 3 item 8.1), repealed by No. 20/2017 s. 134(Sch. 1 item 5.1(a)).
S. 464ZGH
(2)(g)(ii) amended by No. 22/2016 s. 167.
(ii) the Health Complaints Commissioner within the meaning of the Health Records Act 2001 for the purposes of that Act; or
S. 464ZGH(2) (g)(iii) substituted by No. 32/2007 s. 7(3).
(iii) the Ombudsman appointed under the Ombudsman Act 1973; or
S. 464ZGH(2) (g)(iv) inserted by No. 32/2007 s. 7(3), amended by Nos 34/2008 s. 143(Sch. 2 item 3.1), 82/2012 s. 159(2), 20/2017 s. 134(Sch. 1 item 5.1(b)), substituted by No. 3/2019 s. 71(1).
(iv) the IBAC;
S. 464ZGH (2)(ga) inserted by No. 3/2019 s. 71(2).
(ga) the IBAC performing its functions under thisAct;
S. 464ZGH
(2)(h) inserted by No. 20/2017 s. 134(Sch. 1 item 5.1(c)).
(h) an investigation of a complaint by the Information Commissioner under the Privacy and Data Protection Act 2014.
(3) This section does not apply to information that cannot be used to discover the identity of any person.
S. 464ZGI inserted by No. 16/2002 s. 16.
464ZGI Permissible matching of DNA profiles
S. 464ZGI(1) substituted by No. 32/2007 s. 8(1).
(1) A matching of a DNA profile on an index of the Victorian DNA database specified in column 1 of the following Table with a DNA profile on another index of the database specified in column 2, 3, 4, 5, 6, 7 or 8 of the Table is not permitted by this Subdivision if—
(a) "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
(b) 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.
S. 464ZGI(1) (Table) substituted by No. 32/2007 s. 8(1).
Profile to be matched
Is matching permitted?
Column 1
Column 2<br>Crime Scene
Column 3<br>Suspects
Column 4<br>Volunteers (limited purposes)
Column 5<br>(Volunteers (unlimited purposes)
Column 6<br>Serious offenders
Column 7<br>Missing persons
Column 8<br>Unknown deceased persons
1. crime scene
yes
yes
only if within purpose
yes
yes
yes
yes
2. suspects
yes
yes
only if within purpose
yes
yes
yes
yes
3. 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
4. volunteers (unlimited purposes)
yes
yes
only if within purpose
yes
yes
yes
yes
5. serious offenders
yes
yes
only if within purpose
yes
yes
yes
yes
6. missing persons
yes
yes
only if within purpose
yes
yes
yes
yes
7. unknown deceased persons
yes
yes
only if within purpose
yes
yes
yes
yes
(2) A person—
S. 464ZGI (2)(a) amended by No. 32/2007 s. 8(2).
(a) whose conduct causes the matching that is not permitted by this Subdivision of a DNA profile on an index of the Victorian DNA database with a DNA profile on the same or another index of the Victorian DNA database; and
(b) who intends or is reckless as to any such matching of profiles—
is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGI(3) amended by No. 32/2007 s. 8(2).
(3) A person is not guilty of an offence against subsection (2) if the person's conduct causes a matching that is not permitted by this Subdivision but the matching is solely for the purpose of administering the Victorian DNA database.
S. 464ZGJ (Heading) amended by No. 32/2007 s. 9(1).
S. 464ZGJ inserted by No. 16/2002 s. 16.
464ZGJ Recording, retention and removal of identifying information on DNA database
S. 464ZGJ(1) def. of identifying information substituted by No. 32/2007 s. 9(2).
identifying information means information referred to in section 464ZFD(1), whether or not kept on the Victorian DNA database;
S. 464ZGJ(1) def. of identifying period amended by No. 32/2007 s. 9(1)(3)-(5).
identifying period for identifying information means—
(a) except as provided by paragraphs (b) and (c), the period of 12 months after the information is placed on the DNA database;
(b) if the information is derived from forensic material taken from a volunteer—the period after the information is placed on the DNA database that is agreed by the Chief Commissioner of Police and the volunteer;
(c) if the information is derived from forensic material taken from a deceased person (not being a person who was a volunteer) whose identity is known—the period for which the Chief Commissioner of Police orders the responsible person to retain the information;
S. 464ZGJ(1) def. of responsible person repealed by No. 32/2007 s. 9(6).
S. 464ZGJ(2) amended by No. 32/2007 s. 9(1)(7).
(2) A person who intentionally or recklessly causes any identifying information to be recorded or retained in a DNA database at any time after this Subdivision requires the forensic material to be destroyed is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGJ(3) amended by No. 32/2007 s. 9(1)(8)-(10).
(3) A responsible person who does not ensure that any identifying information on the volunteers (unlimited purposes) index or volunteers (limited purposes) index of the DNA database is removed from the database as soon as practicable after the end of the identifying period for the information is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGJ(4) amended by Nos 32/2007 s. 9(1)(9)(11), 68/2009 s. 97(Sch. item 40.40).
(4) A responsible person who does not ensure that any identifying information relating to an offender on the serious offenders index of the DNA database is removed from the database 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 set aside is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGK (Heading) amended by No. 32/2007 s. 10(1).
S. 464ZGK inserted by No. 16/2002 s. 16.
464ZGK Disclosure of Victorian information
S. 464ZGK (1)(a) substituted by No. 32/2007 s. 10(2).
(a) has access to Victorian information; and
S. 464ZGK (1)(b) amended by No. 32/2007 s. 10(3).
(b) intentionally or recklessly causes the disclosure of the Victorian information other than as provided by this section—
is guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGK(2) amended by No. 32/2007 s. 10(4).
(2) A person may only disclose Victorian information stored on a DNA database for one or more of the following purposes—
(2)(a) amended by No. 37/2014 s. 10(Sch. item 36.40).
(a) forensic comparison in the course of a criminal investigation by a police officer or any other person authorised in writing by the Chief Commissioner of Police;
(b) making the information available, in accordance with the regulations, to the person to whom the information relates;
S. 464ZGK (2)(c) substituted by No. 32/2007 s. 10(5).
(c) administering the DNA database;
S. 464ZGK (2)(d) substituted by No. 32/2007 s. 10(5).
(d) in accordance with an agreement entered into under section 464ZGN;
(e) in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth or the Extradition Act 1988 of the Commonwealth;
(f) a coronial investigation or inquest;
(g) an investigation of a complaint by—
(2)(g)(i) substituted by No. 60/2014 s. 140(Sch. 3 item 8.2), repealed by No. 20/2017 s. 134(Sch. 1 item 5.2(a)).
(2)(g)(ii) amended by No. 22/2016 s. 168.
(ii) the Health Complaints Commissioner within the meaning of the Health Records Act 2001 for the purposes of that Act; or
S. 464ZGK(2) (g)(iii) substituted by No. 32/2007 s. 10(6).
(iii) the Ombudsman appointed under the Ombudsman Act 1973; or
S. 464ZGK(2) (g)(iv) inserted by No. 32/2007 s. 10(6), amended by Nos 34/2008 s. 143(Sch. 2 item 3.2), 82/2012 s. 159(3), substituted by No. 3/2019 s. 72(1).
(iv) the IBAC; or
S. 464ZGK(2) (g)(v) inserted by No. 32/2007 s. 10(6), amended by No. 20/2017 s. 134(Sch. 1 item 5.2(b)).
(v) an authority of a participating jurisdiction, but only if the authority would be entitled to the information if it were held on the participating jurisdiction's DNA database;
S. 464ZGK (2)(ga) inserted by No. 3/2019 s. 72(2).
(ga) the IBAC performing its functions under this Act;
(2)(h) inserted by No. 20/2017 s. 134(Sch. 1 item 5.2(c)).
(h) an investigation of a complaint by the Information Commissioner under the Privacy and Data Protection Act 2014.
S. 464ZGK(3) amended by Nos 32/2007 s. 10(7), 3/2019 s. 72(3).
(3) A person may only disclose Victorian information revealed by the taking of a DNA profile sample or the carrying out of a forensic procedure as follows—
S. 464ZGK(3)(a) amended by No. 3/2019 s. 72(4)(a).
(a) if the person is the suspect, DNA person, 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 Subdivision;
(d) in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth or the Extradition Act 1988 of the Commonwealth;
(e) for the purposes of the investigation of an offence or offences generally;
(f) for the purpose of a decision whether to institute proceedings for an offence;
(g) for the purpose of proceedings for an offence;
(h) for the purpose of a coronial investigation or inquest;
(i) for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;
S. 464ZGK(3)(j) amended by No. 3/2019 s. 72(4)(b).
(j) for the purpose of the suspect's, DNA person's, offender's or volunteer's medical treatment;
(k) for the purpose of the medical treatment of a person if necessary to prevent or lessen a serious threat to that person's life or health;
(l) if necessary to prevent or lessen a serious threat to public health;
(m) if the suspect, offender or volunteer consents in writing to the disclosure.
S. 464ZGK(4) amended by No. 32/2007 s. 10(8).
(4) This section does not apply to Victorian information that cannot be used to discover the identity of any person.
S. 464ZGK(5) inserted by No. 32/2007 s. 10(9).
Victorian information means information referred to in section 464ZFD(1), whether or not kept on the Victorian DNA database.
Heading inserted by No. 16/2002 s. 16.
Inter-jurisdictional enforcement
S. 464ZGL inserted by No. 16/2002 s. 16.
464ZGL Registration of orders
(1) The Minister may enter into arrangements with the responsible Ministers of the participating jurisdictions for the establishment and maintenance, in one or more of those jurisdictions, of a register of orders for the carrying out of forensic procedures made under this Subdivision or corresponding laws of participating jurisdictions.
S. 464ZGL(2) amended by No. 48/2018 s. 19(1).
(2) An order is registered when a copy of the order (being a copy certified as required under subsection (2A)) is registered in accordance with the law of the participating jurisdiction in which the register is kept.
S. 464ZGL(2A) inserted by No. 48/2018 s. 19(2).
(2A) The copy of the order must be certified by—
(a) the person who made it; or
(b) if that person is not available, a judicial officer of the participating jurisdiction in which the order was made.
(3) An application for registration of an order, or for cancellation of registration of an order, may be made by an appropriate authority.
S. 464ZGM inserted by No. 16/2002 s. 16.
464ZGM Carrying out of registered orders
(1) A person is authorised to carry out the forensic procedure authorised by an order that is registered in accordance with an arrangement referred to in section 464ZGL(1) anywhere in Victoria. The person is authorised to carry out the procedure in accordance with sections 464Y, 464Z and 464ZA and not otherwise.
S. 464ZGM(2) amended by No. 37/2014 s. 10(Sch. item 36.41).
(2) A police officer, or other person assisting a police officer in accordance with this Subdivision or a corresponding law of a participating jurisdiction, is not compelled by this Subdivision, or an arrangement referred to in section 464ZGL(1), to execute an order registered under such an arrangement.
S. 464ZGN inserted by No. 16/2002 s. 16, substituted by No. 32/2007 s. 11.
464ZGN Arrangements for transmission of information on DNA database
(1) The Minister may enter into an arrangement with the responsible Minister for a participating jurisdiction, under which—
(a) information from the Victorian DNA database is to be transmitted to the responsible person for the DNA database of the participating jurisdiction for the purposes of—
(i) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of the participating jurisdiction; or
(ii) the identification of missing or deceased persons; and
(b) information from the DNA database of the participating jurisdiction is to be transmitted to the Chief Commissioner of Police for the purposes of—
(i) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of the participating jurisdiction; or
(ii) the identification of missing or deceased persons.
S. 464ZGN(2) amended by No. 54/2016 s. 29(1)(a).
(2) The Minister may enter into an arrangement with the Australian Crime Commission, under which—
S. 464ZGN
(2)(a) amended by No. 54/2016 s. 29(1)(b).
(a) information from the Victorian DNA database is to be transmitted to the Australian Crime Commission for comparison with information on the NCIDD for the purposes of—
(i) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of a participating jurisdiction; or
(ii) the identification of missing or deceased persons; and
S. 464ZGN
(2)(b) amended by No. 54/2016 s. 29(1)(c).
(b) information from the Australian Crime Commission obtained as a result of a comparison with the NCIDD is to be transmitted to the Chief Commissioner of Police for the purposes of—
(i) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of a participating jurisdiction; or
(ii) the identification of missing or deceased persons.
S. 464ZGN(3) amended by No. 54/2016 s. 29(2).
(3) Without limiting subsection (2), an arrangement made under that subsection may provide for the Australian Crime Commission—
(a) to compare information from the Victorian DNA database with information supplied to it from the DNA database of another participating jurisdiction; and
(b) to identify to the Chief Commissioner of Police and the responsible person for the DNA database of the participating jurisdiction any matches that are found as a result of the comparison.
(4) An arrangement entered into under this section may not authorise the comparison of information so as to match DNA profiles in a way that would contravene section 464ZGI were the information contained wholly within the Victorian DNA database.
1 Information that is transmitted under this section must not be recorded or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after the time for destruction of the forensic material that is required by this Subdivision or a corresponding law of a participating jurisdiction. See section 464ZGJ.
2 A person who has access to information from the Victorian DNA database must not disclose the information other than in limited, specified circumstances. See section 464ZGK.
S. 464ZGO inserted by No. 16/2002 s. 16.
464ZGO Taking, retention and use of forensic material authorised by laws of other jurisdictions
(1) Subject to section 464ZGM and this section, nothing in this Subdivision 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 corresponding law of the Commonwealth, another State or a Territory.
(2) Forensic material taken, or information obtained from it, in accordance with a corresponding law of the Commonwealth, another State or a Territory may be retained or used for investigative, evidentiary or statistical purposes even if its retention or use would, but for this subsection, constitute a contravention of a provision of this Subdivision relating to the carrying out of forensic procedures.
(3) Forensic material taken, or information obtained from it, in accordance with a law of the Commonwealth, another State or a Territory as in force immediately before the commencement of section 16 of the Crimes (DNA Database) Act 2002, may be retained or used for investigative, evidentiary or statistical purposes even if its retention or use would, but for this subsection, constitute a contravention of a provision of this Subdivision relating to the carrying out of forensic procedures.
Heading inserted by No. 16/2002 s. 4(c).
General
S. 464ZH (Heading) inserted by No. 13/2010 s. 51(Sch. item 17.11).
S. 464ZH inserted by No. 129/1993 s. 7, amended by Nos 81/1997
s. 29(1)(a)–(d), 13/2010 s. 51(Sch. item 17.12), 3/2019 s. 73(1).
464ZH Immunity of medical practitioners, nurses, midwives, dentists and other persons
No action lies against a medical practitioner or nurse or midwife or dentist or a person authorised under section 464Z or a person assisting the medical practitioner, nurse, midwife, dentist or person in respect of anything properly and necessarily done by the medical practitioner, nurse, midwife, dentist or person in the course of taking a DNA profile sample or conducting any forensic procedure which the medical practitioner, nurse, midwife, dentist or person believes on reasonable grounds—
S. 464ZH(a) inserted by No. 81/1997
s. 29(1)(d), substituted by No. 41/2004 s. 19, amended by No. 3/2019 s. 73(2).
(a) was requested to be taken from or conducted on another person under this Subdivision in accordance with—
S. 464ZH(a)(i) amended by No. 37/2014 s. 10(Sch. item 36.42).
(i) a request of a police officer given under section 464R; or
(ii) an authorisation given by a senior police officer under section 464SA; or
S. 464ZH(a)(iia) inserted by No. 3/2019 s. 73(3).
(iia) a request given by a police officer under section 464SC; or
S. 464ZH(a)(iib) inserted by No. 3/2019 s. 73(3).
(iib) an authorisation given by a senior police officer under section 464SE; or
S. 464ZH(a)(iic) inserted by No. 3/2019 s. 73(3).
(iic) a direction given by a police officer under section 464ZFAB; or
S. 464ZH(a)(iid) inserted by No. 3/2019 s. 73(3).
(iid) a senior police officer authorisation; or
S. 464ZH(a)(iie) inserted by No. 3/2019 s. 73(3).
(iie) an authorisation given by a senior police officer under section 464ZFAE; or
(iii) an order made by a court under this Subdivision; or
S. 464ZH(b) inserted by No. 81/1997
s. 29(1)(d).
(b) was consented to by a person in accordance with sections 464ZGB to 464ZGD.
S. 464ZI inserted by No. 129/1993 s. 7, amended by No. 41/2004 s. 20 (ILA s. 39B(1)).
464ZI Supreme Court—limitation of jurisdiction
(1) It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary—
(a) to prevent the bringing before the Supreme Court of an action seeking to permit an application under section 464M(1), 464T(1), 464U(3) or 464V(2) being conducted otherwise than in accordance with the procedure expressed to be required by this Act; and
(b) to prevent the bringing before the Supreme Court of an action of a kind referred to in section 464ZH.
S. 464ZI(2) inserted by No. 41/2004 s. 20.
(2) It is the intention of section 464ZH as amended by section 19 of the Crimes (Amendment) Act 2004 to alter or vary section 85 of the Constitution Act 1975.
S. 464ZJ inserted by No. 129/1993 s. 7.
464ZJ Regulations
(1) The Governor in Council may make regulations for or with respect to—
(a) accreditation of experts giving forensic evidence in a court; and
(b) testing of the proficiency of experts in conducting procedures about which an expert gives forensic evidence; and
(c) the application and use of statistical analysis to data the subject of forensic evidence; and
S. 464ZJ(1)(d) amended by No. 3/2019 s. 74.
(d) standards for taking DNA profile samples or conducting forensic procedures in accordance with this Subdivision and the analysis of any samples taken; and
(e) generally prescribing any other matter or thing required or permitted by this Subdivision to be prescribed or necessary to be prescribed to give effect to this Subdivision.
(2) The regulations—
(a) may be of general or limited application; and
(b) may differ according to differences in time, place or circumstance; and
(c) may confer a discretionary authority or impose a duty on a specified person or class of persons.
S. 464ZJ(3)(4) repealed by No. 10/1999 s. 31(5)(c).
S. 464ZJ(5) substituted by No. 10/1999 s. 31(5)(d).
(5) If a regulation made under subsection (1) is disallowed by the Parliament or a House of the Parliament, no regulation which is the same in substance as the disallowed regulation may be made within 6 months after the date of the disallowance, unless—
(a) if the regulation was disallowed by one House of the Parliament, that House approves the making of a regulation the same in substance as the disallowed regulation; or
(b) if the regulation was disallowed by both Houses of the Parliament, each House approves the making of a regulation the same in substance as the disallowed regulation.
(6) Any regulation made in contravention of subsection (5) is void.
S. 464ZK inserted by No. 129/1993 s. 7.
464ZK Operation of other Acts
Nothing in this Subdivision affects the operation of any other Act or enactment with respect to the taking of samples or the conduct of forensic procedures.
S. 464ZL inserted by No. 58/2001 s. 3.
464ZL Validation of certain orders
(1) If, on or before 22 December 2000, an order under section 464ZF(3) is purported to have been made by—
(a) the Magistrates' Court not sitting in open court; or
(b) a magistrate not constituting the Magistrates' Court—
the order is deemed to have, and always to have had, the same force and effect as it would have had if the order had been made by the Magistrates' Court sitting in open court.
(2) Subsection (1) does not affect the rights of the parties in the proceeding known as Lednar, O'Brien and Hill v. The Magistrates' Court and The Chief Commissioner of Police (Victoria) (No. 6292 of 2000) in the Supreme Court of Victoria.
S. 464ZL(3) inserted by No. 41/2004 s. 21.
(3) An order purporting to have been made under section 464ZF(2) before the commencement of the Crimes (Amendment) Act 2004 in respect of a person is not invalid only because the person was not given—
(a) notice of the application for the order; or
(b) an opportunity to be heard on the application.
S. 464ZL(4) inserted by No. 41/2004 s. 21.
(4) An order purporting to have been made under section 464ZF(3) before the commencement of the Crimes (Amendment) Act 2004 in respect of a person aged 17 years or more is not invalid only because the person was not given—
(a) notice of the application for the order; or
(b) an opportunity to be heard on the application.
S. 464ZL(5) inserted by No. 41/2004 s. 21.
(5) Subsection (4) does not affect the rights of the parties in the proceeding known as Pavic v. Magistrates' Court of Victoria and Chief Commissioner of Police (No. 1001 of 2002) in the Supreme Court of Victoria.
S. 464ZL(6) inserted by No. 72/2013 s. 16.
(6) If, before the commencement of section 4(1) and (2) of the Crimes Amendment (Investigation Powers) Act 2013, an order is purported to have been made under section 464B(5) in respect of an offence committed outside Victoria against a law of the Commonwealth or another State or a Territory, the order is taken to have, and always to have had, the same force and effect as it would have had if the order had been made after that commencement.
S. 464ZL(7) inserted by No. 72/2013 s. 16.
(7) Any questioning or investigation conducted pursuant to an order referred to in subsection (6) by a member of the Australian Federal Police or a member of the police force of another State or a Territory before the commencement of section 4(1) and (2) of the Crimes Amendment (Investigation Powers) Act 2013 is taken to have, and always to have had, the same force and effect as it would have had if conducted after that commencement.
S. 464ZL(8) inserted by No. 72/2013 s. 16.
(8) Subsections (6) and (7) do not affect the rights of the parties in the proceeding known as Detective Jason Wallace v Bandali Debs and the Magistrates' Court of Victoria (No. 10194 of 2008) in the Supreme Court of Victoria.
S. 464ZLA inserted by No. 3/2019 s. 75.
464ZLA Validation of sample taken in accordance with section 464ZFAB
commencement day means the day on which section 79 of the Justice Legislation Amendment (Police and Other Matters) Act 2019 comes into operation.
(2) A sample taken in a forensic procedure conducted in accordance or purported to be conducted in accordance with section 464ZFAB before the commencement day in a prison was not unlawfully taken only because the person taking the sample had no lawful authority to enter and remain in the prison.
Heading preceding s. 464ZM inserted by No. 3/2019 s. 76.
Oversight by IBAC
S. 464ZM inserted by No. 3/2019 s. 76.
464ZM Functions of IBAC
The IBAC has the following functions under this Subdivision to monitor compliance by police officers and members of Victoria Police personnel or any other person who carried out a function or power in respect of—
(a) the taking of a DNA profile sample;
(b) a senior police officer authorisation;
(c) an authorisation under section 464ZFAE;
(d) any matter on which the Chief Commissioner is required to report on under section 464ZFE.
S. 464ZN inserted by No. 3/2019 s. 76.
464ZN Chief Commissioner of Police to report to IBAC
(1) As soon as practicable after 1 January but not later than 1 March in each year, the Chief Commissioner of Police must provide a written report to the IBAC for the previous 12 months in relation—
(a) to any DNA profile sample taken or senior police officer authorisation or authorisation given and applied for; and
(b) to the destruction of any DNA profile sample taken or given in accordance with a senior police officer authorisation or authorisation; and
(c) to any matter on which the Chief Commissioner is required to report on under section 464ZFE.
(2) The report must include—
(a) a list that identifies by a unique identifying number every DNA profile sample taken or given in accordance with a senior police officer authorisation or authorisation under this Subdivision within the period to which the report relates; and
(b) information on whether any of the DNA profile samples listed in the report were taken from a child; and
(c) the date on which every DNA profile sample listed in the report was taken; and
(d) information on whether any of the DNA profile samples listed in the report or in any previous report submitted under this section have been destroyed within the period to which the report relates and the reason for the destruction of the sample; and
(e) if a DNA profile sample has been destroyed the date that the requirement to destroy it arose under section 464ZFC, the date of destruction and the name of the person who destroyed it; and
(f) the number of senior police officer authorisations and authorisations under section 464SE or 464ZFAE given within the period to which the report relates; and
(g) the number of DNA profile samples taken by consent in accordance with section 464SC within the period to which the report relates; and
(h) the number of authorisations under section 464SE, senior police officer authorisations and authorisations under section 464ZFAE refused within the period to which the report relates; and
(i) information on any DNA profile sample that has been retained for 12 months or more including the status of any investigation of the DNA person from whom the sample was taken within the period to which the report relates.
S. 464ZO inserted by No. 3/2019 s. 76.
464ZO Inspection of records by authorised officers
authorised officer is—
(a) the IBAC Commissioner; or
(b) a sworn IBAC Officer who is authorised under subsection (2);
IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011;
police personnel premises has the same meaning as it has in the Independent Broad-based Anti-corruption Commission Act 2011;
records include the following—
(a) forensic material;
(b) records or recordings, whether in writing or in digital, audio or audiovisual form or otherwise, of—
(i) the taking of a DNA profile sample by informed consent in accordance with section 464SC; and
(ii) an authorisation under section 464SE or a senior police officer authorisation or an authorisation under section 464ZFAE;
(c) documents on a database;
sworn IBAC Officer has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011.
(2) The IBAC Commissioner may authorise a sworn IBAC Officer to exercise the powers of an authorised officer under this section.
(3) An authorised officer must, from time to time, inspect any records of Victoria Police or any other person or body that carried out a function or power for the taking of a DNA profile sample that the authorised officer considers necessary to determine the extent of compliance by a member of Victoria Police personnel or the person or body with this Subdivision for the following—
(a) the taking of a DNA profile sample by way of informed consent in accordance with section 464SC;
(b) an authorisation under section 464SE;
(c) a senior police officer authorisation;
(d) an authorisation under section 464ZFAE;
(e) any matter on which the Chief Commissioner is required to report on under section 464ZFE.
(4) For the purpose of an inspection under this section, an authorised officer—
(a) after notifying the Chief Commissioner of Police, may enter at any reasonable time police personnel premises or any premises occupied by any other person or body that carried out a function or power under this Subdivision; and
(b) is entitled to have full and free access at all reasonable times to all records of Victoria Police or any other person or body that carried out a function or power under this Subdivision that are relevant to the inspection; and
(c) may require a member of Victoria Police personnel or a relevant person or body to give the authorised officer any information that the IBAC considers necessary, being information that is in that person's or body's possession, or to which the person or body has access, and that is relevant to the inspection; and
(d) may do anything that is necessary or convenient to be done to enable an inspection to be carried out under this section.
(5) The Chief Commissioner of Police must ensure that members of Victoria Police personnel give an authorised officer any assistance that the authorised officer reasonably requires to enable the authorised officer to perform functions under this section.
S. 464ZP inserted by No. 3/2019 s. 76.
464ZP IBAC to report to the Attorney-General
(1) The IBAC must give a written report to the Attorney-General at yearly intervals on—
(a) the report given by the Chief Commissioner of Police to the IBAC under section 464ZN; and
(b) the results of each inspection under section 464ZO; and
(c) any recommendations about actions that should be taken in relation to a matter arising out of the report.
(2) The Attorney-General must cause a report under this section to be laid before each House of Parliament within 15 sitting days after the day on which the Attorney-General receives the report.
S. 464ZQ inserted by No. 3/2019 s. 76.
464ZQ Recommendations
(1) The IBAC may at any time make recommendations to the Chief Commissioner about actions that should be taken in relation to a matter arising out of the functions of IBAC under this Subdivision.
(2) Within a reasonable time after receiving a recommendation under subsection (1), the Chief Commissioner must—
(a) take the recommended action; or
(b) if the Chief Commissioner has not taken the recommended action or does not intend to take the recommended action—give a report to the IBAC stating the reason for not taking or intending to take the action.
S. 464ZR inserted by No. 3/2019 s. 76.
464ZR Attorney-General may make a complaint to the IBAC
The Attorney-General may make a complaint to the IBAC under section 51 of the Independent Broad-based Anti-corruption Commission Act 2011 about the taking, use, retention or destruction of forensic material under this Subdivision.
S. 464ZS inserted by No. 3/2019 s. 76.
464ZS Immunity of the IBAC and sworn IBAC Officers
(1) The IBAC or a sworn IBAC Officer is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—
(a) in the performance of a duty or a function or the exercise of a power under this Subdivision; or
(b) in the reasonable belief that the act or omission was in the performance of a duty or a function or the exercise of a power under this Act.
(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to the IBAC or a sworn IBAC Officer attaches instead to the State.
(31) Search warrants for and seizure of things
S. 464ZT inserted by No. 44/2022 s. 72.
464ZT Definitions
evidentiary material means a thing that will afford evidence as to the commission of an offence for which a warrant has been issued under section 465;
warrant premises, in relation to a warrant, means a building, receptacle, place or vehicle that is subject to the warrant.
No. 6103 s. 465.
465 Issue of search warrant by magistrate
S. 465(1) amended by Nos 7184 s. 7, 8179 s. 4, 16/1986 s. 30, 57/1989 s. 3(Sch. item 42.56(a)–(d)), 22/1996
s. 6(1)(a), 25/2009 s. 5(1), 37/2014 s. 10(Sch. item 36.42), 6/2018 s. 68(Sch. 2 item 35.10), 44/2022 s. 73(1).
(1) Any magistrate who is satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place—
S. 465(1)(a) amended by No. 22/1996
s. 6(1)(b).
(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant—
may at any time issue a warrant authorizing some police officer or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and hold or retain it according to law.
S. 465(1A) inserted by No. 22/1996
s. 6(2), repealed by No. 42/2015 s. 8, new s. 465(1A) inserted by No. 44/2022 s. 73(2).
(1A) Subject to this Subdivision, a warrant issued under subsection (1) authorises the police officer executing it to hold or retain a seized thing for as long as is reasonably required for the purposes of—
(a) the investigation of the offence in relation to which it was seized; or
(b) a criminal proceeding for the offence in relation to which it was seized.
S. 465(1B) inserted by No. 63/2003 s. 43.
(1B) A magistrate who issues a warrant under subsection (1), if satisfied on reasonable grounds by the evidence given under that subsection that the thing to which the warrant relates is also tainted property within the meaning of the Confiscation Act 1997, may, in that warrant, direct that the applicant hold or retain that thing as if it were tainted property seized under a warrant under section 79 of that Act as and from the date when that thing is no longer required for evidentiary purposes under this Act.
S. 465(2) amended by Nos 9427 s. 6(1)(Sch. 5 item 40), 57/1989 s. 3(Sch. item 42.57(a)(b)).
(2) Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 shall extend and apply to warrants under this section.
S. 465(2A) inserted by No. 44/2022 s. 73(3).
(2A) Despite section 78(1)(b)(ii) of the Magistrates' Court Act 1989, a warrant issued under subsection (1) does not require an article, thing or material to be brought before the Magistrates' Court.
S. 465(3) amended by No. 44/2022 s. 73(4).
(3) The provisions of this section shall be read and construed as in aid of and not in derogation of the provisions with regard to warrants to search contained in this or any other Act, except as set out in subsection (2A).
(4) The Governor in Council may make regulations prescribing the form of any warrant to be issued under this section and any such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting, and if not then within fourteen days after the next meeting of Parliament.
S. 465(5) inserted by No. 22/1996
s. 6(3), repealed by No. 48/1997
s. 61, new s. 465(5) inserted by No. 25/2009 s. 5(2).
S. 465AAAA inserted by No. 44/2022 s. 74.
465AAAA Powers relating to receptacles
(1) A police officer executing a warrant issued under section 465 in relation to warrant premises is authorised to break open or unlock any receptacle in or on the warrant premises as is reasonably necessary for conducting a search under the warrant.
(2) For the purposes of subsection (1), the police officer executing the warrant is authorised to take any action that is reasonably necessary—
(a) to determine whether the receptacle is, or contains, a thing that may be seized; or
(b) to determine whether the receptacle is, or contains, a thing that may pose a hazard to a person; or
(c) to assess or remove any thing in the receptacle that may pose a hazard to a person; or
(d) to deal with the receptacle or any thing in the receptacle to prevent any hazard or mitigate the risk of any hazard to a person.
(3) A police officer executing a warrant issued under section 465 in relation to warrant premises is authorised to move a receptacle to another place, for up to 7 business days, for examination to determine whether the receptacle is, or contains, a thing that may be seized under the warrant, if—
(a) it is significantly more practicable to do so having regard to the following—
(i) the timeliness;
(ii) the cost of examining the receptacle at another place;
(iii) the availability of expert assistance;
(iv) the safety of a person at the warrant premises during the execution of the warrant; and
(b) there are reasonable grounds to suspect the receptacle is, or contains, a thing that may be seized under the warrant.
business day means a day other than a Saturday or Sunday or a day appointed as a public holiday under the Public Holidays Act 1993.
S. 465AAAAB inserted by No. 44/2022 s. 74.
465AAAAB Police may use assistants and equipment
(1) A police officer executing a warrant issued under section 465 in relation to warrant premises may do any of the following—
(a) seek the assistance of a person (an assistant) who possesses specialised skills or technical knowledge necessary for exercising a power authorised by the warrant and bring the assistant onto the warrant premises;
(b) bring onto the warrant premises any equipment, vehicle, animal or material that the police officer reasonably requires for exercising a power authorised by the warrant.
(2) The police officer may direct an assistant—
(a) to take stated action at the premises; and
(b) to exercise stated powers that the police officer is authorised by the warrant to exercise.
(3) For the purposes of subsection (2), the police officer—
(a) is only permitted to direct an assistant to take stated action or exercise stated powers that are consistent with the specialist skills or technical knowledge of the assistant; and
(b) cannot direct the assistant to arrest a person.
(4) The police officer must inform the assistant of—
(a) the action that the assistant is directed to take; and
(b) the assistant's powers under this section.
(5) The police officer may seek the assistance of as many assistants as are reasonably necessary to exercise the powers authorised by the warrant.
S. 465AAAAC inserted by No. 44/2022 s. 74.
465AAAAC Police officer may arrange for expert to operate electronic equipment at premises being searched
(1) This section applies to a police officer executing a warrant issued under section 465 in relation to warrant premises who believes on reasonable grounds that—
(a) evidentiary material may be accessible by operating electronic equipment found at the warrant premises; and
(b) expert assistance is required to operate the equipment; and
(c) if the police officer does not take action under this section, the material may be destroyed, altered or otherwise interfered with.
(2) Subject to subsections (4), (5) and (6), the police officer may—
(a) do whatever is necessary to secure the electronic equipment at the warrant premises, including—
(i) locking the equipment in a secure room; and
(ii) guarding or placing a guard at the equipment; and
(b) arrange for an expert to attend and operate the equipment.
(3) The police officer must notify the occupier of the warrant premises of—
(a) the police officer's intention to secure the electronic equipment; and
(b) the periods that electronic equipment may be secured under subsections (5) and (6).
(4) In securing electronic equipment under subsection (2), a police officer must cause the least disruption and inconvenience to the occupier of the warrant premises as is reasonably practicable in the circumstances.
(5) Subject to subsection (6), the electronic equipment may be secured for a period not exceeding 24 hours.
(6) If an expert attends within the period referred to in subsection (5), the electronic equipment may be secured for—
(a) an additional period ending when the expert finishes operating the equipment or 24 hours after the expert arrives (whichever occurs first); or
(b) if the Magistrates' Court extends the period under section 465AAAAE(1), the period as so extended.
S. 465AAAAD inserted by No. 44/2022 s. 74.
465AAAAD Application for extension of time to allow expert to finish operating equipment
(1) This section applies if a police officer—
(a) secures electronic equipment under section 465AAAAC; and
(b) believes on reasonable grounds that an expert—
(i) will not arrive within 24 hours of the equipment being secured; or
(ii) will not finish operating the equipment within 24 hours after arriving.
(2) A police officer may apply to the Magistrates' Court for an extension of the period for which the electronic equipment may be secured under section 465AAAAC by not more than 7 days.
(3) The occupier of the warrant premises is entitled to be heard in relation to an application made under subsection (2).
(4) The police officer must notify the occupier of the warrant premises—
(a) that the police officer intends to apply for an extension of the period for which the electronic equipment is secured; and
(b) that the occupier is entitled to be heard in relation to the application.
S. 465AAAAE inserted by No. 44/2022 s. 74.
465AAAAE Determination of application for extension of time to allow expert to finish operating equipment
(1) On an application under section 465AAAAD, the Magistrates' Court may extend the period that the electronic equipment may be secured if the Magistrates' Court is satisfied that the extension is appropriate in the circumstances and the expert—
(a) will not arrive within 24 hours of the equipment being secured; or
(b) will not finish operating the equipment within 24 hours after arriving.
(2) In determining whether the extension is appropriate in the circumstances, the Magistrates' Court may have regard to the following—
(a) the length of time that is likely required for an expert to attend the warrant premises and operate the equipment;
(b) the inconvenience that securing the equipment may cause to a person;
(c) the likelihood that operating the electronic equipment will enable evidentiary material to be accessed, copied or converted into documentary form in accordance with section 465AAAAF;
(d) any other matters the Magistrates' Court considers relevant.
(3) The Magistrates' Court may direct that a police officer must not take a specified action in relation to the secured electronic equipment during the extended period if it appears to the Magistrates' Court that—
(a) the taking of that action would cause unreasonable disruption and inconvenience to an occupier of the warrant premises; and
(b) it is appropriate in the circumstances to limit the exercise of the police officer's powers under the warrant.
(4) A period extended under subsection (1) ends at the earlier of either—
(a) the end of the further period specified by the Magistrates' Court in the extension; or
(b) the time at which the expert finishes operating the equipment.
(5) The further period specified by the Magistrates' Court must not exceed 7 days.
(6) The Magistrates' Court may extend a period under subsection (1) in relation to particular equipment more than once.
S. 465AAAAF inserted by No. 44/2022 s. 74.
465AAAAF Warrant authorises a police officer to access data held in or accessible from a computer or data storage device
A warrant issued under section 465 in relation to warrant premises authorises a police officer executing the warrant to do one or more of the following things—
(b) copy to another data storage device data held in, or accessible from, a computer or data storage device described in paragraph (a);
(c) convert into documentary form—
(i) data held in, or accessible from, a computer or data storage device described in paragraph (a); or
S. 465AAA inserted by No. 42/2015 s. 9.
465AAA Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer or computer network
S. 465AAA(1) amended by No. 44/2022 s. 75.
(1) Subject to subsection (3), a warrant issued under section 465 in relation to warrant premises may authorise a police officer executing the warrant to give a direction under subsection (2) to a specified person.
(2) A police officer may direct a specified person to provide any information or assistance that is reasonable and necessary to allow the police officer to do one or more of the following things—
(b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a);
(c) convert into documentary form or another form intelligible to a police officer—
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(3) A warrant may authorise the giving of a direction under subsection (2) if the magistrate issuing the warrant is satisfied that—
(a) there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (2)(a) will afford evidence as to the commission of an indictable offence; and
(b) the specified person is—
(i) reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and
(c) the specified person has relevant knowledge of—
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(4) A person commits an offence if—
(a) the person has relevant knowledge of—
(i) the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and
(b) the person is informed by a police officer—
(i) of the authorisation to give the direction under subsection (2) and of its terms; and
(ii) that it is an offence to fail to comply with the direction; and
(c) the person fails to comply with the direction without reasonable excuse.
(5) A person who commits an offence against subsection (4) is liable to level 7 imprisonment (2 years maximum).
(6) An offence against subsection (4) is a summary offence.
(7) A person is not excused from complying with a direction under subsection (2) on the ground that complying with it may result in information being provided that might incriminate the person.
(8) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1).
S. 465AA inserted by No. 79/2014 s. 69.
465AA Power to require assistance from person with knowledge of a computer or computer network
S. 465AA(1) amended by No. 44/2022 s. 76.
(1) This section applies if a magistrate has issued a warrant under section 465 in relation to warrant premises.
(2) The Magistrates' Court may, on the application of a police officer of or above the rank of senior sergeant, make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a police officer to do one or more of the things specified in subsection (3).
(3) The things are—
(b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a);
(c) convert into documentary form or another form intelligible to a police officer—
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(4) An application may be made under subsection (2) at the same time as an application is made for the warrant under section 465 or at any time after the issue of the warrant.
(5) The Magistrates' Court may make the order if satisfied that—
(a) there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (3)(a) will afford evidence as to the commission of an indictable offence; and
(b) the specified person is—
(i) reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and
(c) the specified person has relevant knowledge of—
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(6) A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.
(7) If—
(a) the computer or data storage device that is the subject of the order is seized under the warrant; and
(b) the order was granted on the basis of an application made before the seizure—
the order does not have effect on or after the completion of the execution of the warrant.
An application for another order under this section relating to the computer or data storage device may be made after the completion of the execution of the warrant.
(8) If the computer or data storage device is not on warrant premises, the order must—
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) to which the requirement to provide the information or assistance is subject.
(9) A person commits an offence if—
(a) the person has relevant knowledge of—
(i) the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and
(b) the person is informed by a police officer—
(i) of the order made under this section and of its terms; and
(ii) that it is an indictable offence punishable by imprisonment to fail to comply with the order; and
(c) the person fails to comply with the order without reasonable excuse.
(10) A person who commits an offence against subsection (9) is liable to level 6 imprisonment (5 years maximum).
S. 465AA(10A) inserted by No. 42/2015 s. 10.
(10A) This section applies in addition to section 465AAA, whether or not in relation to the same specified person. However, a person may be charged with an offence against either section 465AAA(4) or subsection (9) but not both.
(11) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1).
S. 465AAB inserted by No. 44/2022 s. 77.
465AAB Informing a person about a report relating to the execution of a warrant
A police officer executing a warrant issued under section 465 in relation to warrant premises must inform the occupier of the warrant premises (if any) of—
(a) the requirement for a report about the execution of the warrant to be made in accordance with section 465AAC; and
(b) the venue of the Magistrates' Court at which the report will be lodged; and
(c) the time period in which the report will be lodged; and
(d) the persons who may be authorised by the Magistrates' Court to inspect the report under section 465AAE.
S. 465AAC inserted by No. 44/2022 s. 77.
465AAC Report to the Magistrates' Court after executing search warrant
(1) A police officer who is issued a warrant under section 465 in relation to warrant premises must make and sign a report on the execution or non‑execution of the warrant.
(2) The police officer must cause the report under subsection (1) to be lodged—
(a) with a registrar at the venue of the Magistrates' Court that is nearest to the warrant premises; and
(b) no later than 10 days after the execution or expiry of the warrant, whichever is earlier.
(3) A report under subsection (1) made in relation to a warrant that was executed must—
(a) contain particulars of—
(i) the name of the police officer in charge of the execution of the warrant; and
(ii) if the police officer who executed the warrant sought the assistance of a person under section 465AAAAB—
(A) the person's name; and
(B) the person's expertise or qualifications; and
(iii) the date on which the warrant was executed; and
(iv) the powers that were executed under the warrant; and
(v) if electronic equipment was secured and operated by an expert under section 465AAAAC—
(A) the electronic equipment secured and operated; and
(B) the name of the expert who operated the electronic equipment; and
(vi) if an application to extend the time for electronic equipment to be secured is made under section 465AAAAD, the outcome of that application; and
(vii) the result of the execution of the warrant, including—
(A) the name of any persons arrested; and
(B) a description of any thing seized; and
(C) a description of any searches undertaken; and
(D) a description of any thing that was broken open, unlocked, destroyed or disposed or moved to another place under section 465AAAA(3) during the execution of the warrant; and
(b) be in the prescribed form (if any).
(4) A report under subsection (1) made in relation to a warrant that was not executed must contain reasons why the warrant was not executed.
S. 465AAD inserted by No. 44/2022 s. 77.
465AAD The Magistrates' Court may summon a police officer to give evidence about a report
(1) After a report about a warrant is filed or lodged at a venue of the Magistrates' Court under section 465AAC(2), the Magistrates' Court may issue a summons to the police officer who signed the report to give evidence on the matters contained in the report.
(2) The summons must include the venue of the Magistrates' Court and the date and time at which the police officer is to appear before the Magistrates' Court to give evidence.
(3) The Magistrates' Court may direct that any thing seized under a warrant, to which the report relates, is to be returned to its owner, subject to any condition that the Magistrates' Court thinks fit, if in the opinion of the Magistrates' Court it can be returned consistently with the interests of justice.
S. 465AAE inserted by No. 44/2022 s. 77.
465AAE Application to inspect a report
(1) A person may apply to the Magistrates' Court at the venue where the report was filed or lodged under section 465AAC(2) for an order authorising the person to inspect the report.
(2) The Magistrates' Court may, on an application made under subsection (1), make an order authorising the person to inspect the report or a part of the report that is relevant to the person, if satisfied that the person is—
(a) a person who was arrested during the execution of the warrant; or
(b) the owner or occupier of the building, receptacle, place or vehicle that was subject to the execution of the warrant; or
(c) the owner of property that was seized during the execution of the warrant; or
(d) the owner of property that was broken open, unlocked, destroyed or disposed of during the execution of the warrant; or
(e) a person who has an interest in a thing that was seized, broken open, unlocked, destroyed or disposed of during the execution of the warrant; or
(f) if electronic equipment was secured for operation by an expert under section 465AAAAC, a person who has an interest in the equipment.