Crimes (Forensic Procedures) Act 2000

The Act primarily affects NSW Police Force officers (including senior police officers of or above sergeant rank (s 3(1)), investigating police officers, and the Commissioner), who hold powers to request consent (ss 11, 68, 75G, 75W), make orders (ss 18, 70, 75I, 75Y), apply for judicial orders (ss 26, 32, 74, 75L, 75ZB), and manage the DNA database (ss 90-94). Authorised applicants (police officers in charge of stations, custody managers under the Law Enforcement (Powers and Responsibilities) Act 2002, investigating officers, or the Director of Public Prosecutions (s 3(1))) may apply for orders.

It directly impacts suspects (persons suspected on reasonable grounds, charged, or summonsed for an offence (s 3(1))), who may be subject to procedures with consent (Part 3), senior officer order (Part 4, non-intimate only), or judicial order (Part 5). Special rules apply to children (at least 10 but under 18 (s 3(1))), incapable persons (adults unable to understand or indicate consent (s 3(1))), and persons identifying as Aboriginal or Torres Strait Islander (ss 8, 10, 30, 55, 76B, 98).

Serious indictable offenders (convicted of offences punishable by life or 5+ years imprisonment, or equivalent (s 3(1))) are affected by Part 7, which authorises procedures during sentence with consent or order. Untested former offenders (persons who served sentences for serious indictable offences but whose DNA is not on the offenders index, and who are later served with an indictable court attendance notice (s 75A)) fall under Part 7A. Untested registrable persons (registrable under the Child Protection (Offenders Registration) Act 2000 whose DNA is not on the offenders index (s 75P)) are covered by Part 7B, including during reporting obligations (s 75W).

Volunteers (persons, children with parental consent, or incapable persons with guardian consent who agree to procedures, excluding suspects, children under 10, or excluded volunteers (s 76)) are regulated by Part 8. Excluded volunteers (victims of specified sexual or property offences or their parents/guardians, or persons eliminating prints from crime scenes (s 76A)) have limited database use. Children under 10 (Part 8A, inserted 2009) may only be sampled with parental/guardian consent for victim or elimination purposes (s 81C) or by judicial order (s 81F).

Interview friends (parents, guardians, legal representatives, Aboriginal legal aid representatives, or independent persons (s 4)) and legal representatives (Australian legal practitioners (s 3(1))) have rights to be present, receive information, and make requests or objections (s 99). Medical practitioners, nurses, dentists, dental prosthetists, and appropriately qualified police officers or persons (s 4A: suitable qualifications, Commissioner authorisation, or regulations) may carry out procedures (s 50 table). The responsible person for the DNA database (declared by regulation (s 3(1))) must manage indexes, matching, and destruction (ss 92-94).

Transgender persons (defined broadly in s 3(6)-(7), including those identifying as opposite sex or indeterminate) have private parts defined to include breasts for females or those identifying as female (s 3(1)). Parents or guardians of children or incapable persons hold consent rights (ss 76, 77, 80, 81B-81N). The Ombudsman monitors operation for 18 months post-Part 8 commencement (s 121), and the Standing Committee on Law and Justice may inquire (s 123). Interstate authorities and the Australian Crime Commission are affected by registration and sharing arrangements (Part 12, s 97).

The Act does not apply to persons under 10 for standard suspect procedures (s 81A) or to photographs, prints taken under Law Enforcement (Powers and Responsibilities) Act 2002 ss 133, 136, 138A-138B or Crimes (Sentencing Procedure) Act 1999 s 63 (s 112).

Police duties commence with identification inquiries (ss 8, 64A, 75D, 76B) and provision of information for informed consent. For suspects, this includes purpose, offence, procedure details, potential evidentiary use against them, qualified operator, right to refuse and consequences, interview friend rights for Aboriginal/Torres Strait Islander persons, and DNA database rules (s 13). Similar but tailored information is required for serious indictable offenders (s 69), untested former offenders (s 75H), registrable persons (s 75X), and volunteers (s 77, including limited vs unlimited index use and destruction agreements).

Rights to an interview friend (s 4) are mandatory for children, incapable persons, and (unless waived) Aboriginal or Torres Strait Islander suspects/offenders/volunteers (ss 10, 30, 54-55). The friend may be excluded only for unreasonable interference or prejudice to investigation (ss 10(9), 30(8), 54(3), 55(4)). Legal representatives have parallel rights (s 99). Suspects may request a medical practitioner or dentist of choice for certain intimate or wound procedures (ss 13(2), 53).

Procedures must afford reasonable privacy, minimise clothing removal and visual inspection (s 44), prohibit questioning (s 45), require a caution (s 46), and use reasonable force only pursuant to order and consistent with professional standards (ss 47, 52). Same-sex carrying out is required where practicable for most intimate or clothing-removal non-intimate procedures (s 51). Self-administered buccal swabs may occur in view of any person (s 51A). Electronic recording is mandatory unless objected to or impracticable, with independent person presence as fallback (s 57); volunteers' friends have no objection right (s 57(3)).

Volunteers and their parents/guardians may withdraw consent before, during, or after the procedure, triggering destruction unless a Judge orders retention where crime scene material exists and probative value is likely (ss 79, 81). Children under 10 have analogous protections (ss 81D, 81N). Database information access is restricted to forensic matching, administration, prescribed arrangements, reviews of convictions, Ombudsman/Privacy Commissioner investigations, coronial inquiries, or regulations (s 92). Matching is permitted only per the s 93 table; volunteers (limited purposes) and children/incapable volunteers may only match "within purpose" or by judicial order (ss 93, 93A). Identifying information must be removed after agreed periods for volunteers (s 94(2)) or upon pardon/acquittal (s 94(3)).

Suspects, offenders, and volunteers have rights to copies of material, photographs, DNA profiles, and match statements (ss 58-60, 81K, 81L), without charge (s 102), and to view recordings (s 100). Breaches render evidence inadmissible unless the court balances factors in s 82(5) (probative value, reasons for breach, gravity, intent, etc.). Material required to be destroyed is inadmissible if tendered by prosecution (s 83). Missing persons index material is inadmissible against the volunteer (s 83A). Refusal to consent is admissible only on lawfulness of police conduct (s 84).

The responsible person for the database commits an offence for improper recording of identifying information post-destruction (s 94(1)). Offenders and registrable persons must not refuse court-ordered procedures without reasonable excuse (ss 75, 75O, 75ZD, maximum 50 penalty units or 12 months imprisonment).

The Act creates specific offences with penalties up to 100 penalty units or 2 years imprisonment. Supplying forensic material for prohibited analysis (analysis where material must be destroyed) with intent or recklessness is punishable under s 91(1). Supply for DNA profile inclusion on a database index from non-permitted material carries the same penalty (s 91(2)). Unauthorised access to or matching on the DNA database (ss 92(1), 93(3)) is an offence, though s 93(4) exempts administrative matching. Recording identifying information after destruction is required (s 94(1)) or failing to remove it after identifying periods (s 94(2)-(3)) attracts the same penalty. Improper disclosure of database or procedure information (s 109(5)) is likewise punishable.

Refusal or failure by a serious indictable offender, untested former offender, or untested registrable person to permit a court-ordered procedure without reasonable excuse is an offence punishable by 50 penalty units or 12 months imprisonment (ss 75, 75O, 75ZD(1)). False or misleading information in judicial applications (s 43A) carries 100 penalty units or 2 years imprisonment. Publication of suspect identities in proceedings (except where charged or authorised) is punishable by 50 penalty units or 12 months imprisonment (s 43(1)), though internal police management is exempted (s 43(2)).

Enforcement occurs summarily before the Local Court (s 117). Inadmissibility under ss 82-83A provides a strong practical sanction: courts must exclude evidence from improper procedures unless the desirability of admission outweighs non-compliance (s 82(4)), considering the s 82(5) factors, and must warn juries of breaches (s 82(7)). Destruction obligations (Part 10) are enforced by the Commissioner of Police (s 89) and responsible person (s 94). The Ombudsman scrutinises police functions for 18 months after Part 8 commencement (s 121(1)-(2)), with reporting to Parliament (s 121(6)-(8)). The Standing Committee on Law and Justice may inquire into operation (s 123).

Liability protection for officers and helpers (s 107) applies only to good faith acts where consent or order was reasonably believed to exist; malice or recklessness removes protection. Experts are not compelled to perform procedures (s 108).

The Act expressly interacts with the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Investigation periods under LEPRA s 115 are referenced for time limits (ss 6, 7(3)-(5), 17(3)-(5), 42) and "time out" disregards (ss 6, 16(2), 40(2)). LEPRA Parts 9 and 15 rights and protections are preserved and supplemented (s 113). Arrest powers under LEPRA support securing attendance (ss 28, 41) and detention at reporting locations for registrable persons (s 75W(5)). Fingerprints and photographs under LEPRA ss 133, 136, 138A-138B are excluded from the Act (s 112).

The Crimes Act 1900 defines prescribed offences (s 3(1)) and excluded volunteer contexts (s 76A: Parts 3, 4, 4AA, 4AC, 4AD). Serious indictable offences cross-reference participating jurisdictions (s 3(1)). The Crimes (Sentencing Procedure) Act 1999 converts home detention orders and is referenced for place of detention (s 3(1)) and s 63 fingerprinting (s 112). The Child Protection (Offenders Registration) Act 2000 defines registrable persons and reporting obligations triggering Part 7B (s 75P, s 75W).

The Births, Deaths and Marriages Registration Act 1995 Part 5A informs the recognised transgender person definition (s 3(1)). The Interpretation Act 1987 applies to undefined terms (s 3(1) note). The Mutual Assistance in Criminal Matters Act 1987 (Cth) and Extradition Act 1988 (Cth) permit disclosure (ss 92(2)(e), 109(3)(d)). The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 affects "acquittal" for destruction rules (s 88(9)).

Interstate corresponding laws enable registration of orders (s 96) and database sharing arrangements (s 97). The Police Act 1990 governs internal complaints (ss 92(2)(g), 109(3)(m)) and Commissioner delegation (note to s 89). The Crimes (Appeal and Review) Act 2001 Part 7 provides review grounds for database use (s 92(2)(f)) and appeal rights from Judge orders (s 115A).

Part 14 declares the Act does not limit other State laws on procedures, samples, identification, searches, or retention (s 114(1)), but powers may be used concurrently (s 114(2)). Pre-commencement material may still be used (s 115(3)). Section 112 excludes certain LEPRA and sentencing fingerprinting. Ombudsman scrutiny (s 121) and parliamentary review (s 122) add oversight layers.

The Act has been amended over 20 times, per the s 3 note. Key changes expanded scope and refined safeguards. The Crimes (Forensic Procedures) Amendment Act 2006 inserted Part 7A for untested former offenders (s 75A definition, procedures in ss 75B-75O) to close the gap where convicted persons had not been sampled, responding to database completeness needs. It also updated consent and order provisions (e.g. ss 11, 20, 24, 69, 70) and added self-administered buccal swabs (s 51A).

The Crimes (Forensic Procedures) Amendment Act 2007 (No 87) inserted Part 7B for untested registrable persons (s 75P), allowing sampling during reporting (s 75W, amended 2009) to link sex offender registers with DNA databases for public safety. The Crimes (Forensic Procedures) Amendment Act 2009 (No 111) added Part 8A (ss 81A-81N) prohibiting procedures on children under 10 except for victim/elimination purposes with consent or judicial order, addressing community concern over sampling very young children while permitting missing persons or identification uses. It also substituted s 87 on destruction after conviction quashing and amended database and volunteer provisions (ss 90, 93A).

The Crimes (Forensic Procedures) Amendment Act 2008 (No 56) clarified database matching (s 93 table amendments) and validated certain interstate arrangements (Sch 1). Later amendments included 2023 changes inserting s 4A (appropriately qualified persons via qualifications, Commissioner authorisation, or regulations) and updating the s 50 table, ensuring flexibility in operator qualifications while maintaining standards. The 2025 amendment (Sch 2.27) updated references to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

These changes were driven by operational gaps (incomplete offender databases), technological advances (buccal swabs), privacy concerns (children under 10, destruction rules), and harmonisation with interstate schemes (s 97 arrangements). Each expanded the DNA database's utility for cold cases, missing persons, and offender tracking while tightening inadmissibility (ss 82-83A) and destruction rules to protect civil liberties.

The source text does not detail specific court decisions; all claims are grounded in statutory provisions. Controversies are addressed through built-in safeguards. Section 48 prohibits carrying out procedures in a "cruel, inhuman or degrading manner" but clarifies that compliance with the Act is not of itself such conduct, responding to potential arguments under international covenants (referenced in s 82(5)(h)).

Inadmissibility under s 82(4) requires courts to balance probative value against breach undesirability using 11 enumerated factors (s 82(5)(a)-(k)), including gravity of breach, intentionality, and whether it undermined statutory protections. Juries must be warned of breaches (s 82(7)). Section 83 renders prosecution-tendered evidence inadmissible where destruction was required. These provisions mitigate risks of unlawful evidence admission.

Publication restrictions (s 43) limit identification of suspects in proceedings unless charged or judicially authorised, with internal police use exempted, balancing open justice against privacy. False information offences (s 43A) and onus provisions (ss 103-106) reinforce procedural integrity. For Aboriginal and Torres Strait Islander persons, mandatory interview friend inquiries and presence (ss 8, 10, 30, 55, 76B) address historical concerns about equitable treatment.

Database controversies are managed by strict use limits (s 92(2): forensic matching, administration, conviction reviews, Ombudsman/Privacy investigations, coronial inquiries), matching table (s 93), and child/incapable volunteer restrictions (s 93A, requiring judicial order after considering best interests and wishes). Destruction obligations (ss 86-89, 94) and volunteer withdrawal rights (ss 79, 81) prevent indefinite retention. Interstate arrangements (s 97(1B)) prohibit matching that would breach s 93 if wholly within NSW.

Oversight mechanisms (Ombudsman scrutiny under s 121 for 18 months post-Part 8, parliamentary review under s 122, and Standing Committee inquiry under s 123) were enacted to address implementation controversies. The Act's onus on the prosecution to prove reasonable belief (s 103), impracticability (s 104), time disregards (s 105), and voluntary waiver (s 106) further protects against abuse.

Most practitioners miss that "destroy" (s 3(5)) requires not only physical destruction but removal of any linking DNA profile information from the entire database system—failure triggers offences under s 94. "Time out" (s 3(1)) is a broad, non-exhaustive list of 11 categories (conveyance, waiting for officers/equipment, legal consultations, medical attention, intoxication recovery, rest, suspect request, senior officer/Judge waiting); it can substantially extend the 2-hour limits in ss 6, 16, 40, 42, but must be strictly documented.

The s 93 matching table contains a critical "only if within purpose" restriction for the volunteers (limited purposes) index and, via s 93A, for children or incapable volunteers; matching outside stated purposes (or without judicial order under s 93A(2), which requires weighing age, best interests, wishes, and submissions) renders evidence inadmissible and may constitute an offence. Self-administered buccal swabs (non-intimate) may be viewed by opposite-sex persons (s 51A), but other-administered versions are intimate, triggering same-sex and medical practitioner rights.

For registrable persons (Part 7B), s 75W(2)-(5) permits detention at a police station or reporting place for the reasonable time needed to seek consent, carry out the procedure, or make an order—yet this is not an arrest, and the person must be told why, that it is authorised, and that release is immediate upon refusal without order or completion. The transgender definitions (s 3(6)-(7)) are expansive, applying to those who "identify" by living as opposite sex (even if not recognised under births legislation) and altering "opposite sex" and "same sex" references accordingly; private parts include breasts for females or those identifying as female (s 3(1)).

Volunteers can agree to limited purposes index placement (s 77(2)(b)), which restricts matching (s 93), or unlimited (s 77(2)(c)), allowing full criminal investigation use; the distinction must be explicitly explained, or the profile cannot be placed. Destruction after 12 months for suspect material (s 88(2)) is mandatory if no proceedings are instituted, but a Judge may extend on application if "special reasons" exist (s 88(5)-(8)), with notice to the person required. Interim orders (s 32) allow urgent procedures but prohibit analysis unless the sample will perish or a final order is made (s 38(1)), with disclosure offences carrying 12 months imprisonment (s 38(2)).

Excluded volunteers (s 76A) for sexual offence victims or print elimination are outside the volunteer definition, so their material cannot go on volunteer indexes. Section 115(3) preserves pre-Act material use, but post-Act breaches still trigger inadmissibility. The onus provisions (ss 103-106) place the burden on the prosecution to prove reasonable belief, impracticability, time disregards, and voluntary waiver on the balance of probabilities—failure dooms the evidence.

Compliance for police and practitioners requires meticulous adherence to statutory steps. For suspects, begin with the s 8 inquiry and provide all s 13 information (personally or in writing) before seeking consent under s 11; document reasonable grounds that the procedure may produce evidence confirming or disproving the offence (s 11(2)-(3)). Record the entire consent process electronically if practicable (s 15(1)); otherwise use an independent person and written record (s 15(2)). If consent is refused, senior officers must consider the s 20 matters before ordering non-intimate procedures on arrested suspects.

For judicial orders, authorised applicants must file written applications supported by oath or affidavit (s 26(2)), and Judges balance public interest in evidence against physical integrity using the nine factors in s 24(4). Interim orders require urgency and sufficient evidence that a final order is likely (s 32(1)). All procedures follow the s 50 table for qualified persons, same-sex rules (s 51), privacy (s 44), and recording (s 57). Post-procedure, make material available within 90 days (s 101(2)) and ensure destruction per Part 10 (e.g. 12 months for suspect material if no proceedings (s 88(2)), or upon acquittal/pardon (s 87)).

For offenders, former offenders, and registrable persons, repeat the informed consent process (ss 67-69, 75F-75H, 75V-75X) and use the senior officer or court order pathways. Registrable persons may be detained only for the reasonable time to seek consent or complete the procedure (s 75W(4)), with immediate release if refused and no order made. Volunteers require independent-person consent (s 77(1)), explicit explanation of index placement and destruction agreements (s 77(2)), and written form (s 78). For children under 10, obtain parental/guardian consent in the presence of an independent person (s 81C(3)-(5)) or apply for judicial order weighing best interests (s 81F(2)).

Database compliance demands the responsible person enforce s 93 matching rules, remove identifying information after agreed periods (s 94(2)), and restrict access to enumerated purposes (s 92(2)). Arrangements under s 97 must not permit matching breaching s 93 (s 97(1B)). Destruction includes database purging (s 3(5)). Legal practitioners should advise clients of all s 13/69/77 information, rights to medical practitioners (s 53), interview friends, and withdrawal consequences, and object to non-compliant procedures to trigger s 82 inadmissibility.

Records must be kept of orders (ss 21, 31, 36, 73, 75K, 75ZA). Use of force is limited to orders under Parts 4, 5, 7, 7A, or 7B (s 47(3)). Auditors should verify that "time out" is only claimed for listed categories and properly documented. Regular training on s 4A qualifications, updated definitions (including 2023 amendments), and interstate arrangements ensures ongoing compliance. Breaches risk evidence exclusion, disciplinary action under the Police Act 1990, or offences under ss 91-94, 109.