Criminal Law (Forensic Procedures) Act 2007 (South Australia)

This Act establishes a comprehensive statutory regime for authorising, carrying out, storing and using forensic procedures and the DNA information that may be derived from them in South Australia. It creates distinct authorisation pathways depending on the factual setting: volunteers and victims procedures (consent or senior police authorisation) (Part 2 Div 1, ss 6-12), suspects procedures (simple procedures may be carried out where a person is suspected of a serious offence; more intrusive procedures require a senior police officer order after an informal hearing) (Part 2 Div 2, ss 13-19), offenders procedures (simple identity procedures for certain prison/detention or supervisory statuses) (Part 2 Div 3, s 20), and a specific blood‑testing stream for testing for communicable diseases in prescribed circumstances (Part 2 Div 4, ss 20A-20B). The Act also covers how forensic procedures are to be performed (humanely, by appropriately qualified persons, with interpreter and witness rights, and audiovisual recording requirements for intrusive procedures) (Part 3, ss 21-27), and it prescribes handling, retention, destruction and assimilation of forensic material (Part 4, ss 33-39A).

Part 5 creates and regulates a DNA database system with multiple indices (crime scene, missing persons, unknown deceased, suspects/offenders, volunteers limited/unlimited and a statistical index) and detailed rules about what may be stored where, when transfer is permitted following orders, and who may access or compare profiles (ss 40-46). The Act addresses admissibility of evidence derived from forensic procedures and the consequences of non‑compliance (Part 6, ss 47-49), and includes confidentiality, prohibited publications, arrangements with other jurisdictions, an annual compliance audit by the Ombudsman, and a power for the Minister and Commissioner to make regulations (Part 7, ss 50-58). The Act expressly intends to operate extra‑territorially to the fullest extent of the Parliament's power (s 5). The statute also contains transitional and validation provisions and a legislative history of amendments.

South Australia Criminal Law (Forensic Procedures) Act 2007 An Act to provide for carrying out forensic procedures to obtain evidence relevant to the investigation of criminal offences and for other purposes; to make provision for a DNA database system; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Application of Act 5 Extra-territorial operation Part 2—Authorisation of forensic procedures Division 1—Volunteers and victims procedures 6 Interpretation 7 Volunteers and victims procedures 8 Authorisation by consent of relevant person 9 Authorisation by senior police officer 10 Withdrawal of consent 11 Volunteers and victims procedure not to be carried out on protected person who objects to procedure 12 Provision of information Division 2—Suspects procedures 13 Interpretation 14 Suspects procedures 15 Application for order 16 Conduct of hearing 17 Respondent's rights at hearing of application 18 Applications of special urgency 19 Making of order Division 3—Offenders procedures 20 Offenders procedures Division 4—Blood testing of certain persons for communicable diseases 20A Interpretation 20B Senior police officer may authorise taking of blood sample from certain persons Part 3—Carrying out forensic procedures Division 1—General provisions on carrying out forensic procedures 21 Forensic procedures to be carried out humanely 22 Right to be assisted by interpreter 23 Duty to observe relevant medical or other professional standards 24 Who may carry out forensic procedure 25 Right to have witness present 26 Audiovisual record of intrusive procedures to be made 27 Exemption from liability Division 2—Special provisions relating to suspects and offenders procedures 28 Application of Division 29 Police officer may issue directions 30 Warnings to be given by police officer 31 Use of force 32 Obstruction Part 4—How forensic material is to be dealt with Division 1—Access to forensic material 33 Person to be given sample of material for analysis following suspects or offenders procedure Division 2—Analysis of certain material 34 Hair samples 34A Forensic material obtained under Part 2 Division 4 Division 3—Retention and assimilation orders 35 Interpretation 36 Order for retention of forensic material obtained by carrying out volunteers and victims procedure on protected person 37 Order for forensic material obtained by volunteers and victims procedure to be treated as if obtained by suspects procedure 38 General provisions relating to applications under this Division Division 4—Destruction of certain forensic material 39 Destruction of forensic material obtained by carrying out volunteers and victims procedure 39A Destruction of forensic material obtained under Part 2 Division 4 Part 5—The DNA database system 40 Interpretation 41 Commissioner may maintain DNA database system 42 Storage of information on DNA database system 43 Specific consent required for storage of DNA profile on a volunteers index 44 Storage of information on suspects/offenders index following assimilation order 45 Access to and use of DNA database system 46 Removal of information from DNA database system Part 6—Evidence 47 Effect of non-compliance on admissibility of evidence 48 Admissibility of evidence of denial of consent, obstruction etc 48A Inadmissibility of evidence relating to forensic procedure under Part 2 Division 4 49 Evidentiary certificates Part 7—Miscellaneous 50 Confidentiality 50A Release and disclosure for scientific purposes 51 Restriction on publication 52 State Records Act 1997 not to apply 53 Forensic material lawfully obtained in another jurisdiction 54 Subsequent procedure where insufficient material obtained 55 Power to require forensic procedure on deceased person 56 Arrangements with other jurisdictions 57 Compliance audits 58 Regulations Schedule 1—Transitional provisions Part 4—Transitional provisions 6 Retention of fingerprints etc obtained in accordance with Summary Offences Act 1953 7 Material obtained in accordance with repealed Act 8 Retention and assimilation orders under repealed Act 9 Continuation of DNA database system 10 Validation provision Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Criminal Law (Forensic Procedures) Act 2007. 3—Interpretation (1) In this Act, unless the contrary intention appears— assimilation order means an order under section 37; child means a person under the age of 18 years; closest available next of kin means— (a) in relation to a child, the first in order of priority of the following persons who is not a protected person and is available at the time: (i) a parent of the child; (ii) a brother or sister of the child; (iii) a guardian of the child; and (b) in relation to any other person, the first in order of priority of the following persons who is not a protected person and is available at the time: (i) the spouse or domestic partner of the person; (ii) a son or daughter of the person; (iii) a parent of the person; (iv) a brother or sister of the person; corresponding law means a law of another jurisdiction that provides for carrying out forensic procedures and is prescribed by regulation for the purposes of this definition; DNA database system—see section 40; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; forensic material means material obtained by carrying out a forensic procedure (but does not include the results of the analysis of any such material); forensic procedure means a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of— (a) the taking of prints of the hands, fingers, feet or toes; or (b) an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person); or (c) the taking of a sample of biological or other material from a person's body (but not the taking of a detached hair from the person's clothing); or Note— This would include, for example, taking a sample of the person's hair, a sample of the person's fingernails or toenails or material under the person's fingernails or toenails, a blood sample, a sample by buccal swab or a sample of saliva. (d) the taking of an impression or cast of a part of a person's body; Note— This would include, for example, the taking of a dental impression or the taking of an impression or cast of a wound. guardian means a person acting or appointed under any Act or law as the guardian of another; gun shot residue procedure means a forensic procedure consisting of the taking of samples by swab or other similar means of the hands and fingers of a person for the purposes of determining the presence of gun shot residue; intrusive forensic procedure means— (a) a forensic procedure that involves exposure of, or contact with, the genital or anal area, the buttocks or the breast region of a female person or a transgender or intersex person who identifies as female; or (b) the taking of a dental impression; or (c) the taking of a sample of blood, but does not include a simple identity procedure; investigating police officer means a police officer in charge of the investigation of a suspected offence; medical practitioner, in relation to a forensic procedure, means a person who is registered as a medical practitioner in the jurisdiction in which the procedure is to be carried out and includes, in relation to a forensic procedure involving the mouth or teeth or an impression left by the mouth or teeth, a person who is registered as a dentist in the jurisdiction in which the procedure is to be carried out; offenders procedure—see section 20; police officer includes a law enforcement officer to whom the powers of a police officer under this Act are extended by regulation; protected person means— (a) a child; or (b) a person physically or mentally incapable of understanding the nature and consequences of a forensic procedure; quality assurance register means a register maintained by the Commissioner of Police for quality assurance purposes that contains DNA profiles derived from biological material from— (a) police officers; and (b) persons involved in the conduct of forensic procedures under this Act; and (c) persons involved in the analysis of forensic material; retention order means an order under section 36; senior police officer means a police officer of or above the rank of inspector; serious offence means— (a) an indictable offence; or (b) a summary offence that is punishable by imprisonment; simple forensic procedure means a forensic procedure consisting of 1 or more of the following: (a) a simple identity procedure; (b) a gun shot residue procedure; (c) a forensic procedure prescribed by regulation for the purposes of this definition; simple identity procedure means a forensic procedure consisting of 1 or more of the following: (a) the taking of prints of the hands or fingers of a person; (b) the taking of forensic material from a person by buccal swab or finger-prick for the purpose of obtaining a DNA profile of the person; spouse—a person is the spouse of another if they are legally married; suspects/offenders index—see section 40; suspects procedure means a forensic procedure authorised under Part 2 Division 2 and includes, for the purposes of Part 3, a forensic procedure authorised under Part 2 Division 4; telephone includes any device for voice telecommunication; volunteers (limited purposes) index—see section 40; volunteers and victims procedure—see section 7; volunteers (unlimited purposes) index—see section 40. (2) A reference in this Act to the closest available next of kin of a person means, where there are 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of closest available next of kin in subsection (1), any 1 of those people. Note— This means, for example, that where this Act requires the consent of the closest available next of kin of a person to the carrying out of a forensic procedure, the procedure may be authorised by the consent of any 1 of the closest available next of kin (being persons who are equal in the order of priority in the definition of that term), even if the other closest available next of kin do not consent. (3) For the avoidance of doubt, a procedure consisting of the taking of a sample of biological material from— (a) a police officer; or (b) a person involved in the conduct of forensic procedures under this Act; or (c) a person involved in the analysis of forensic material, for the purpose of obtaining a DNA profile of the person to be included in the quality assurance register does not constitute a forensic procedure for the purposes of this Act. (4) For the purposes of this Act, a person is suspected of a serious offence if the police officer by or on whose instructions a forensic procedure is to be carried out on the person suspects the person, on reasonable grounds, of having committed a serious offence (whether or not the person has been charged with the offence). 4—Application of Act (1) Nothing in this Act applies to— (a) a forensic procedure authorised under another law of this State; or (b) a search of a person. Note— Forensic procedures authorised under another law would include, for example, the taking of a sample of breath, blood or oral fluid from a person under the Road Traffic Act 1961. (2) The fact that a particular class of forensic procedure may be authorised under another law of this State does not prevent that class of forensic procedure from being authorised under this Act, unless the other law specifically excludes the operation of this Act. (3) Except for Part 5 and Part 7, this Act does not apply to a forensic procedure carried out on the body of a deceased person. 5—Extra-territorial operation It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extra-territorial legislative capacity of the Parliament. Part 2—Authorisation of forensic procedures Division 1—Volunteers and victims procedures 6—Interpretation In this Division— protected person means— (a) a child under the age of 16 years; or (b) a person physically or mentally incapable of understanding the nature and consequences of a forensic procedure; relevant person, in relation to a forensic procedure proposed to be carried out on a person under this Division, means— (a) if the person on whom the procedure is to be carried out is not a protected person—that person; or (b) if the person on whom the procedure is to be carried out is a protected person— (i) in the case of a child—the closest available next of kin of the child; or (ii) in any other case—the person's guardian or, if the person does not have a guardian, the closest available next of kin of the person. 7—Volunteers and victims procedures (1) A forensic procedure authorised under this Division is a volunteers and victims procedure. (2) A forensic procedure may be carried out on a person under this Division if— (a) the procedure is not being carried out on the person in connection with the person being suspected of a serious offence; and (b) either— (i) the relevant person consents to the procedure in accordance with section 8; or (ii) a senior police officer authorises the carrying out of the procedure in accordance with section 9. 8—Authorisation by consent of relevant person A relevant person may consent to the carrying out of a forensic procedure under this Division by— (a) expressly consenting to the procedure orally or in writing; or (b) giving some other unequivocal indication of consent. 9—Authorisation by senior police officer A senior police officer may, by instrument in writing, authorise the carrying out of a forensic procedure specified in the instrument on a protected person if the officer is satisfied that— (a) it is impracticable or inappropriate to obtain consent to the procedure from the relevant person— (i) because of the difficulty of locating or contacting that person; or (ii) because that person, or a person related to or associated with him or her, is under suspicion in relation to a criminal offence; and (b) the carrying out of the procedure is justified in the circumstances of the case. 10—Withdrawal of consent (1) A relevant person who has given consent to the carrying out of a volunteers and victims procedure may, by withdrawing his or her consent, withdraw the authority to carry out the procedure at any time before completion of the procedure. (2) If, at any time before completion of a volunteers and victims procedure, the relevant person who has given consent to the procedure behaves in a way that would indicate withdrawal of consent to a reasonable observer, the person is taken to have withdrawn consent under subsection (1). (3) If authority to carry out a volunteers and victims procedure is withdrawn under subsection (1), the procedure may only be continued or resumed if— (a) a new authorisation for the procedure is obtained under this Division; or (b) the procedure is authorised under some other law. (4) If authority to carry out a volunteers and victims procedure is withdrawn under subsection (1), any evidence obtained as a result of the procedure is not admissible in any proceedings. 11—Volunteers and victims procedure not to be carried out on protected person who objects to procedure (1) Before a volunteers and victims procedure is carried out on a protected person, a police officer or the person who is to carry out the procedure must explain to the protected person that the procedure will not be carried out if the person objects to the procedure. (2) A volunteers and victims procedure is not to be carried out and, if commenced, is not to be continued on a protected person if the person objects to or resists the procedure. (3) However— (a) failure to give an explanation under subsection (1) does not affect the admissibility of evidence obtained as a result of the procedure; and (b) if a volunteers and victims procedure is commenced but not completed because of objection or resistance to the procedure, the admissibility of evidence obtained before the procedure was, or should have been, discontinued is not affected; and (c) this section does not apply if the person on whom the forensic procedure is (or is to be) carried out— (i) is under 10 years of age; or (ii) does not appear to be capable of responding rationally to information. 12—Provision of information (1) If forensic material is obtained from a person by carrying out a volunteers and victims procedure, the person who carries out the procedure must give the relevant person a written statement, in a form approved by the Attorney-General, explaining the right to request destruction of the material under section 39. (2) However, failure to give a written statement under subsection (1) does not affect the admissibility of evidence obtained as a result of the procedure. Division 2—Suspects procedures 13—Interpretation In this Division— respondent, in relation to an application for an order authorising a forensic procedure under this Division, means the person on whom it is proposed to carry out the forensic procedure. 14—Suspects procedures (1) A forensic procedure authorised under this Division is a suspects procedure. (2) A forensic procedure may be carried out on a person under this Division if— (a) the person is suspected of a serious offence; and (b) either— (i) the procedure consists only of a simple forensic procedure; or (ii) the procedure is authorised by order under this Division. (3) For the avoidance of doubt, a forensic procedure may be carried out on a person under this Division whether or not the person is in lawful custody. 15—Application for order (1) An order authorising a forensic procedure under this Division may be made by a senior police officer. (2) An application for such an order— (a) must be made in writing by a police officer; and (b) must state the nature of the suspected offence and the grounds for suspecting that the respondent has committed the offence; and (c) must state the nature of the forensic procedure for which the order is sought and the grounds for suspecting the forensic procedure could produce evidence of value to the investigation of the suspected offence. (3) A copy of the application must be given to the respondent, unless the application is one to which section 18 applies. (4) The application may be sent by fax or email to the senior police officer who is to hear the application or, if it is not reasonably practicable to send the application by fax or email, the application may be read to the officer over the telephone (however, in such a case, a copy of the application must be provided to the officer as soon as practicable after the application is made). 16—Conduct of hearing Subject to this Division, an order may be made by a senior police officer on the basis of an informal hearing conducted in such manner as the senior police officer thinks fit. 17—Respondent's rights at hearing of application (1) The respondent may be represented by a legal practitioner at the hearing of the application. (2) If the respondent is a protected person, he or she must be represented by an appropriate representative at the hearing (and may also be represented by a legal practitioner). (3) An appropriate representative may be— (a) a parent, relative or friend chosen by, or acceptable to, the protected person; or (b) if there is no available person in the above category—an advocate for the protected person nominated by a government or private agency with responsibilities for the care of protected persons of the relevant class; or (c) if there is no available person within the above categories—a person, who is not a police officer or person involved in the investigation of the suspected offence, chosen by a police officer in charge of a police station or the investigating police officer. (4) A hearing may be conducted by telephone or other electronic means provided that the respondent or the respondent's representatives (if any) are given a reasonable opportunity to make representations at the hearing to the senior police officer who is determining the application. 18—Applications of special urgency (1) This section applies to an application for an order authorising a forensic procedure under this Division if— (a) the respondent cannot be located at the time at which the application is made; and (b) evidence (or the probative value of evidence) may be lost or destroyed if the forensic procedure is not carried out urgently. (2) If a senior police officer is satisfied that this section applies to an application— (a) section 17 does not apply in relation to the application; and (b) the senior police officer may proceed to determine the application in the absence of the respondent, or any representative of the respondent. 19—Making of order (1) A senior police officer may make an order authorising the carrying out of a forensic procedure on the respondent if, after conducting the hearing required under this Division, the officer is satisfied that— (a) there are reasonable grounds to suspect that the respondent has committed a serious offence; and (b) there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence; and (c) the public interest in obtaining evidence tending to prove or disprove the respondent's guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference. (2) In weighing the public interest in obtaining evidence tending to prove or disprove guilt against the public interest in ensuring that private individuals are protected from unwanted interference, the senior police officer must have regard to— (a) the seriousness of the suspected offence; and (b) the extent to which the procedure is necessary for the proper investigation of the suspected offence; and (c) any likely effects of the procedure on the welfare of the respondent (so far as they can be reasonably anticipated) given the respondent's age, physical and mental health, and cultural and ethnic background; and (d) whether there is a less intrusive but reasonably practicable way of obtaining evidence of the same or similar probative value to confirm or disprove that the respondent committed the suspected offence; and (e) other relevant factors. (3) If a senior police officer makes an order authorising the carrying out of a forensic procedure under this Division, the officer must make a written record of the order and the reasons for the order. (4) A copy of the record of the order must be given to the respondent. (5) An order made as a result of an application to which section 18 applies, only remains in force for a period of 12 hours after the making of the order and cannot be extended or renewed (however nothing prevents the making of another order under this Division authorising the relevant forensic procedure provided that order is made following a hearing conducted in accordance with the normal procedures specified in section 17). Division 3—Offenders procedures 20—Offenders procedures (1) A simple identity procedure authorised under this Division is an offenders procedure. (2) A simple identity procedure may be carried out on a person under this Division if the person— (a) is serving a term of imprisonment, detention or home detention in relation to an offence; or (b) is being detained as a result of being declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of an offence; or (c) is convicted of a serious offence by a court; or (d) is declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of a serious offence; or (e) is a registrable offender under the Child Sex Offenders Registration Act 2006. (3) This section applies whether the relevant offence was committed before, on or after the commencement of this section. Division 4—Blood testing of certain persons for communicable diseases 20A—Interpretation In this Division— accident or emergency department of a hospital means the part of a hospital dedicated to the hospital's major accident and emergency functions, including those areas of the department used for administrative, waiting, reception, storage, diagnostic, treatment, consultation, triage and resuscitation functions and the access bays for ambulance and police; biological material of a person means the person's blood or bodily fluids or any other biological material of the person that is capable of communicating or transmitting a disease; emergency services provider means— (a) South Australian Country Fire Service; or (b) South Australian Metropolitan Fire Service; or (c) South Australian State Emergency Service; or (d) SA Ambulance Service Inc, or any other person authorised to provide emergency ambulance services under section 57 of the Health Care Act 2008; or (e) a person authorised to provide non‑emergency ambulance services under section 58 of the Health Care Act 2008; or (f) Surf Life Saving South Australia Incorporated; or (g) a volunteer marine rescue association accredited by the State Marine Rescue Committee to perform search and rescue functions; or (h) the accident or emergency department of a hospital; emergency work means work carried out (whether or not in response to an emergency) by or on behalf of an emergency services provider; hospital means the site of an incorporated hospital or private hospital (both within the meaning of the Health Care Act 2008) at which the health services provided by the hospital include services provided on a live‑in basis; prescribed employment—the following is prescribed employment: (a) employment as a police officer; (b) employment as a police security officer within the meaning of the Police Act 1998; (c) employment in emergency work (whether carried out for remuneration or on a voluntary basis); (d) employment as a registered health practitioner (within the meaning of the Health Practitioner Regulation National Law (South Australia) Act 2010) in a hospital; (e) employment in the provision of assistance or services, in a hospital, to a registered health practitioner (within the meaning of the Health Practitioner Regulation National Law (South Australia) Act 2010) acting in the course of their employment in the hospital; (f) employment as an officer or employee of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982; (g) employment involving the provision of functions under the Youth Justice Administration Act 2016; (h) any other employment of a kind prescribed by the regulations; prescribed serious offence—the following are prescribed serious offences: (a) an offence against section 20 of the Criminal Law Consolidation Act 1935 where the victim is a person engaged in prescribed employment acting in the course of his or her official duties; (ab) an offence against section 20AA of the Criminal Law Consolidation Act 1935; (ac) an offence against section 20AB of the Criminal Law Consolidation Act 1935; (b) an offence against section 23 of the Criminal Law Consolidation Act 1935 where the victim is a person engaged in prescribed employment acting in the course of his or her official duties; (c) an offence against section 24 of the Criminal Law Consolidation Act 1935 where the victim is a person engaged in prescribed employment acting in the course of his or her official duties; (d) an offence against section 29 of the Criminal Law Consolidation Act 1935 where the victim is a person engaged in prescribed employment acting in the course of his or her official duties; (e) an offence against Part 3A of the Criminal Law Consolidation Act 1935; (f) an offence against section 6 of the Summary Offences Act 1953; (g) an offence against section 6A of the Summary Offences Act 1953; (h) any other serious offence prescribed by the regulations. 20B—Senior police officer may authorise taking of blood sample from certain persons (1) The purpose of this section is to provide for the authorisation, in certain circumstances, of the carrying out of a forensic procedure on a person, consisting of the taking of a sample of blood from that person, for the purposes of testing for the presence of any communicable diseases which may be detected in blood. (2) A senior police officer (the authorising officer) may authorise a forensic procedure consisting of the taking of a sample of blood to be carried out on a person under this Division if they are satisfied that— (a) the person is suspected of a prescribed serious offence; and (b) it is likely that a person engaged in prescribed employment came into contact with, or was otherwise exposed to, biological material of the person as a result of the suspected offence. (3) Subject to subsection (4), if the person engaged in prescribed employment requests authorisation of the forensic procedure referred to in subsection (2)— (a) within— (i) 7 days; or (ii) if the authorising officer considers that the person engaged in prescribed employment did not have a reasonable opportunity to make the request within the period referred to in subparagraph (i) due to injury or other extenuating circumstances—such longer period, not exceeding 6 months, as the authorising officer considers appropriate in the circumstances, after coming into contact with, or otherwise being exposed to, the biological material; and (b) in a manner determined by the Commissioner of Police, the authorising officer must authorise the forensic procedure. (4) Subsection (3) does not apply if the authorising officer knows that the person on whom the forensic procedure would be carried out is a protected person. (5) The authorising officer must make a written record of the grounds on which they determined that the forensic procedure should be authorised to be carried out on a person under this Division, and a copy of the record must be given to the person. (6) For the avoidance of doubt, a forensic procedure may be authorised to be carried out on a person under this Division whether or not the person is in lawful custody. (7) This section applies whether the relevant offence was committed before, on or after the commencement of this section. Part 3—Carrying out forensic procedures Division 1—General provisions on carrying out forensic procedures 21—Forensic procedures to be carried out humanely (1) A forensic procedure must be carried out humanely and with care— (a) to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs; and (b) to avoid inflicting unnecessary physical harm, humiliation or embarrassment. (2) A forensic procedure must not be carried out in the presence or view of more persons than are necessary for properly carrying out the procedure and satisfying any relevant statutory requirements. (3) If reasonably practicable, a forensic procedure that involves exposure of, or contact with, the genital or anal area, the buttocks or the breast region of a female person or a transgender or intersex person who identifies as female, must not be carried out by a person of a different sex (other than at the request of the person on whom the forensic procedure is to be carried out). 22—Right to be assisted by interpreter If a person on whom a forensic procedure is to be carried out is not reasonably fluent in English, the person is entitled— (a) to be assisted by an interpreter; and (b) if the person so requests—to have an interpreter present during carrying out of the forensic procedure. 23—Duty to observe relevant medical or other professional standards A forensic procedure must be carried out in a way that is consistent with appropriate medical standards or other relevant professional standards. 24—Who may carry out forensic procedure (1) A person who carries out a forensic procedure must be— (a) a medical practitioner; or (b) a person who is qualified as required by the regulations to carry out forensic procedures of the relevant type. (2) A person carrying out a forensic procedure may be assisted by a police officer or other person. 25—Right to have witness present (1) If an intrusive forensic procedure is to be carried out on a person, the person must be allowed a reasonable opportunity to arrange for the attendance, at the person's expense, of a medical practitioner of the person's choice to witness the forensic procedure. (2) If, in accordance with an authorisation under a Division of Part 2, a forensic procedure is to be carried out on a person who is a protected person within the meaning of that Division, an appropriate representative must be present to witness the forensic procedure. (3) An appropriate representative may be— (a) a relative or friend chosen by, or acceptable to, the protected person; or (b) if there is no available person within the above category—an advocate for the protected person nominated by a government or private agency with responsibilities for the care of protected persons of the relevant class; or (c) if there is no available person within either of the above categories—a person, who is not a police officer or person involved in the investigation of the suspected offence (if any), chosen by a police officer in charge of a police station or, where relevant, the investigating police officer. (4) However, a witness who attempts, without reasonable justification, to obstruct the forensic procedure may be excluded from the place in which the procedure is being or is to be carried out. 26—Audiovisual record of intrusive procedures to be made (1) An audiovisual recording of an intrusive forensic procedure must be made— (a) if the procedure is a suspects procedure; or (b) if the procedure is a volunteers and victims procedure and the person on whom the procedure is to be carried out requests the making of an audiovisual record. (2) Arrangements must be made, at the request of the person on whom the intrusive forensic procedure was carried out, for the playing of the audiovisual recording of the procedure at a reasonable time and place to be nominated by the Commissioner of Police. (3) A copy of an audiovisual recording made under this section must, on payment of the fee fixed by regulation, be made available to the person on whom the forensic procedure was carried out. 27—Exemption from liability No civil or criminal liability is incurred by a person who carries out, or assists in carrying out, a forensic procedure for an act or omission if— (a) the person genuinely believes that the forensic procedure is authorised under this Act; and (b) the act or omission is reasonable in the circumstances. Division 2—Special provisions relating to suspects and offenders procedures 28—Application of Division This Division only applies to suspects procedures and offenders procedures. Note— A suspects procedure, for the purposes of this Part, includes a forensic procedure authorised under section 20B—see section 3(1), definition of suspects procedure. 29—Police officer may issue directions (1) If a forensic procedure is to be carried out on a person who is not in lawful custody, a police officer may issue directions about— (a) the time, place and manner in which the forensic procedure is to be carried out; and (b) custody of the person while the forensic procedure is being carried out; and (c) any other incidental matter. (2) A written record of any directions issued under subsection (1) in relation to a forensic procedure must be given to the person on whom the procedure is to be carried out and the person must be informed that if the person fails to comply with the directions, a warrant may be issued by the Magistrates Court for the arrest of the person for the purpose of carrying out the forensic procedure. (3) If a person fails to comply with directions issued under subsection (1) in relation to a forensic procedure, a police officer may apply to the Magistrates Court for the issue of a warrant to have the person arrested and brought to a police station for the purpose of carrying out the forensic procedure. (4) The Magistrates Court must issue a warrant for the arrest of the person under subsection (3) if satisfied that the person has failed to comply with directions issued under subsection (1). 30—Warnings to be given by police officer Before a forensic procedure is carried out on a person, a police officer must inform the person that— (a) reasonable force may be used to carry out the procedure; and (b) if the person obstructs or resists a person in connection with the carrying out of the procedure, evidence of that fact may be admissible in proceedings against the person. 31—Use of force (1) A person authorised under this Act to carry out a forensic procedure, or a person assisting such a person, may use reasonable force— (a) to carry out the authorised forensic procedure; and (b) to protect material obtained by carrying out the forensic procedure. (2) Where this section authorises the use of force to detain a person, that action does not, by itself, constitute an arrest of the person. 32—Obstruction A person must not intentionally obstruct or resist the carrying out of a forensic procedure to which this Division applies. Maximum penalty: Imprisonment for 2 years. Part 4—How forensic material is to be dealt with Division 1—Access to forensic material 33—Person to be given sample of material for analysis following suspects or offenders procedure (1) The Commissioner of Police must ensure that, if forensic material is removed from a person's body as a result of a suspects procedure or an offenders procedure— (a) a part of the material, sufficient for analysis, is set aside for the person as soon as practicable after the material has been analysed; and (b) reasonable care is taken to ensure that the material set aside is protected from degradation until the person receives it; and (c) if the person expresses a desire to have the material analysed—reasonable assistance is given to the person to ensure that the material is protected from degradation until it is analysed. (2) However, subsection (1) need not be complied with if it is not practicable to divide the material obtained into separate parts for analysis. (3) This section does not apply to the taking of prints of the hands, fingers, feet or toes of a person or the taking of an impression or cast of a part of a person's body. Division 2—Analysis of certain material 34—Hair samples A sample of hair taken from a person in the course of a forensic procedure must not be used for the purpose of obtaining a DNA profile of that person unless the person has specifically requested that the DNA profile be obtained in this way. 34A—Forensic material obtained under Part 2 Division 4 Forensic material obtained from a person by carrying out a forensic procedure under Part 2 Division 4 must not be used for a purpose other than testing the material for communicable diseases. Division 3—Retention and assimilation orders 35—Interpretation For the purposes of this Division, the respondent to an application relating to forensic material is— (a) in the case of an application for a retention order—the person who requested destruction of the forensic material to which the application relates; or (b) in the case of an application for an assimilation order— (i) if the person from whom the forensic material was obtained is a protected person— (A) if the person is a child—the closest available next of kin of the child; or (B) if the person is not a child—the person's guardian or, if the person does not have a guardian, the closest available next of kin of the person; or (ii) in any other case—the person from whom the forensic material was obtained. 36—Order for retention of forensic material obtained by carrying out volunteers and victims procedure on protected person (1) If— (a) forensic material was obtained by carrying out a volunteers and victims procedure on a protected person (within the meaning of Part 2 Division 1); and (b) the relevant person who gave consent to the procedure has requested destruction of the forensic material, a senior police officer may make an order authorising the retention of the forensic material for a period specified in the order. (2) A senior police officer may make an order under this section if the officer is satisfied that— (a) the person who gave consent, or a person related to or associated with him or her, is suspected of a serious offence; and (b) there are reasonable grounds to suspect that the forensic material to which the application relates could be of probative value in relation to the investigation of the suspected offence; and (c) the order is justified in all the circumstances. (3) If an order is made under this section authorising the retention of forensic material for a specified period, a senior police officer may, on application by a police officer, extend or further extend the specified period. 37—Order for forensic material obtained by volunteers and victims procedure to be treated as if obtained by suspects procedure A senior police officer may order that forensic material obtained as a result of a volunteers and victims procedure be treated, for the purpose of Division 4 and for the purposes of the DNA database system, as if it were forensic material obtained as a result of a suspects procedure if satisfied that there are reasonable grounds to suspect that the person on whom the procedure was carried out has committed a serious offence and— (a) there are reasonable grounds to suspect that the forensic material may be of value to the investigation of the suspected offence; or (b) the forensic material consists of forensic material from the person's body taken for the purpose of obtaining a DNA profile of the person. 38—General provisions relating to applications under this Division (1) An application for an order under this Division— (a) must be made, in writing, by a police officer; and (b) must state the grounds on which the order is sought. (2) If the respondent can be located, a copy of the application must be given to the respondent. (3) The application may be sent by fax or email to the senior police officer who is to hear the application or, if it is not reasonably practicable to send the application by fax or email, the application may be read to the officer over the telephone (however, in such a case, a copy of the application must be provided to the officer as soon as practicable after the application is made). (4) Subject to this section, an order may be made under this Division by a senior police officer on the basis of an informal hearing conducted in such manner as the senior police officer thinks fit. (5) The respondent may be represented by a legal practitioner at the hearing of the application. (6) If the senior police officer hearing the application is satisfied that the respondent— (a) could not be located to be served with a copy of the application; or (b) has been served with a copy of the application but has failed to attend the hearing, the officer may proceed to hear and determine the application in the absence of the respondent. (7) A hearing may be conducted by telephone or other electronic means provided that, if the respondent or the respondent's representatives (if any) are present at the hearing, the respondent or the respondent's representatives are given a reasonable opportunity to make representations at the hearing to the senior police officer who is determining the application. (8) An order under this Division may include directions about any incidental matter. (9) If a senior police officer makes an order under this Division, the officer must make a written record of the order and the reasons for the order. (10) If the respondent can be located, a copy of the record of the order must be given to the respondent. Division 4—Destruction of certain forensic material 39—Destruction of forensic material obtained by carrying out volunteers and victims procedure (1) The Commissioner of Police must ensure that relevant forensic material obtained from a person by carrying out a volunteers and victims procedure is destroyed— (a) within 21 days after receiving a request for destruction of the material from the relevant person who gave consent to the procedure; or (b) if a retention order has been made in relation to the forensic material—at the time directed in the order. (2) A request for destruction of relevant forensic material must be in writing. (3) A person who, at the time at which a volunteers and victims procedure was authorised, was a protected person (within the meaning of Part 2 Division 1) because he or she was a child under the age of 16 years, may, at any time after reaching the age of 16 years, request the destruction of relevant forensic material under this section as if he or she were the relevant person who gave consent to the procedure. (4) If, within 14 days of receiving a request for destruction of relevant forensic material, an application is made for a retention order or an assimilation order that relates to the material, the Commissioner of Police may postpone destruction of the material until that application is determined. (5) For the purposes of this section, forensic material will be taken to have been destroyed if it is not possible to identify the person from whom the material was obtained or to whom the material relates. (6) In this section— relevant forensic material, in relation to a person, means forensic material that was obtained as a result of a forensic procedure carried out on that person but does not include forensic material that consists only of biological material from a different person. 39A—Destruction of forensic material obtained under Part 2 Division 4 The Commissioner of Police must ensure that forensic material obtained from a person by carrying out a forensic procedure under Part 2 Division 4 is destroyed as soon as is reasonably practicable after the material has been tested for communicable diseases in accordance with section 34A. Part 5—The DNA database system 40—Interpretation In this Part— crime scene index means an index of DNA profiles derived from biological material found— (a) at any place (whether within or outside Australia) where an offence was, or is reasonably suspected of having been, committed; or (b) on or within the body of the victim, or a person reasonably suspected of being a victim, of an offence; or (c) on anything worn or carried by the victim at the time when an offence was, or is reasonably suspected of having been, committed; or (d) on or within the body of any person, on any thing, or at any place, associated with the commission of an offence; DNA database system means a database (whether in computerised or other form and however described) containing— (a) the following indexes of DNA profiles and information that may be used to identify the person from whose biological material each DNA profile was derived: (i) a crime scene index; (ii) a missing persons index; (iii) an unknown deceased persons index; (iv) a suspects/offenders index; (v) a volunteers (unlimited purposes) index; (vi) a volunteers (limited purposes) index; and (b) a statistical index; and (c) any other index prescribed by the regulations; missing persons index means an index of DNA profiles derived from biological material of persons who are missing; statistical index means an index of information that— (a) has been derived from the analysis of biological material obtained by carrying out forensic procedures authorised under this Act, or a corresponding law, or otherwise; and (b) has been compiled for statistical purposes; and (c) cannot be used to discover the identity of persons from whom the biological material was obtained; suspects/offenders index means an index of DNA profiles derived from forensic material of persons— (a) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 1 if an assimilation order has been made in relation to the material or a court or other authority has ordered, in accordance with a corresponding law, that the material be treated as if it were material obtained from a person suspected of an offence; and (b) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 2, or a corresponding law; and (c) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 3 or a corresponding law; unknown deceased persons index means an index of DNA profiles derived from biological material of deceased persons whose identities are unknown; volunteers (limited purposes) index means an index of DNA profiles derived from forensic material of persons on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 1, or a corresponding law, where specific consent has been given, in accordance with this Act or the corresponding law (as the case may require), to the information being stored on this index but a condition prohibiting the information being compared with 1 or more other specified indexes of the DNA database system has been imposed on the consent; volunteers (unlimited purposes) index means an index of DNA profiles derived from— (a) forensic material of persons on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 1, or a corresponding law, where specific consent has been given, in accordance with this Act or the corresponding law (as the case may require), to the information being stored on this index and being used for any purposes for which the DNA database system may be used under this Part; and (b) biological material of deceased persons whose identity is known. 41—Commissioner may maintain DNA database system (1) The Commissioner of Police may maintain a DNA database system. (2) The Minister may— (a) enter into an arrangement with the Minister responsible for the administration of a corresponding law, providing for the exchange of information recorded in the DNA database system kept under this section and a database kept under the corresponding law; and (b) enter into an arrangement with the Minister responsible for the administration of a corresponding law of the Commonwealth or with the ACC, providing for the transmission of information recorded in the DNA database system kept under this section to the ACC for the purpose of that authority doing any, or all, of the following: (i) causing the information so transmitted to form part of a national database; (ii) comparing the information so transmitted with other information on a national database; (iii) identifying any matches between the information so transmitted and other information on a national database; (iv) transmitting information arising from such matches to the Commissioner of Police; (v) any other thing required or authorised to be done under the corresponding law or otherwise authorised by law. (3) In this section— ACC means the Australian Crime Commission established under the Australian Crime Commission Act 2002 of the Commonwealth. 42—Storage of information on DNA database system (1) A person who stores a DNA profile derived from forensic material obtained by carrying out a forensic procedure under this Act on a database other than the DNA database system is guilty of an offence, unless— (a) the DNA profile is stored in such a way that it is not possible to identify the person from whom the material was obtained or to whom the material relates; or (b) the DNA profile is stored on a database kept under a corresponding law or kept by the Commonwealth in accordance with an arrangement entered into under section 41(2); or (ba) the DNA profile is stored on a database kept in accordance with the directions of the Commissioner of Police for the sole purpose of preserving a backup copy of that DNA profile; or (c) the DNA profile is temporarily stored on a database maintained in accordance with the regulations for purposes connected with the administration of this Act. Maximum penalty: $10 000 or imprisonment for 2 years. (2) A person who intentionally or recklessly— (a) causes the supply of biological material for the purpose of storing a DNA profile on the DNA database system; or (b) stores a DNA profile on the DNA database system, in circumstances in which that storage is not authorised by this Act (or a corresponding law) is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. 43—Specific consent required for storage of DNA profile on a volunteers index (1) A DNA profile derived from forensic material of a person on whom a forensic procedure has been carried out in accordance with an authorisation under Part 2 Division 1 must not be stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index unless the relevant person has consented to that storage in accordance with this section. (2) Before a person consents to the storage of a DNA profile under this section a police officer must— (a) complete a written statement, in a form approved by the Attorney-General, explaining— (i) the options, under this Act, relating to the storage of the DNA profile on the DNA database system and the person's right to refuse consent to such storage or impose conditions— (A) limiting the period for which such storage can occur; or (B) prohibiting the comparison of that DNA profile with DNA profiles stored on other specified indexes of the DNA database system; and (ii) any other matters required by the Attorney-General; and (b) read that statement to the person; and (c) give the person a copy of the written statement. (3) If the person is not reasonably fluent in English, the statement required to be read to the person under subsection (2) must be read with the assistance of an interpreter. (4) A person gives consent to the storage of a DNA profile under this section by— (a) expressly consenting orally or in writing; or (b) giving some other unequivocal indication of consent. (5) If consent is given otherwise than in writing, an audio or audiovisual record of— (a) the statement read to the person; and (b) the giving of consent by the person, must be made and, subject to subsection (6), a copy of that record must be given to the person. (6) A copy of an audiovisual record will not be provided unless the fee fixed by regulation is paid. (7) Arrangements must be made, at the request of the person, for the playing of an audiovisual record at a reasonable time and place to be nominated by the Commissioner of Police. (8) In this section— relevant person, in relation to a DNA profile, means— (a) if the DNA profile is of a person who is not a protected person—that person; or (b) if the DNA profile is of a protected person— (i) in the case of a child—the closest available next of kin of the child; or (ii) in any other case—the person's guardian or, if the person does not have a guardian, the closest available next of kin of the person. 44—Storage of information on suspects/offenders index following assimilation order If an assimilation order is made in relation to forensic material, a DNA profile derived from the material— (a) if the DNA profile is stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index—must be transferred to the suspects/offenders index; or (b) in any other case—may be stored on the suspects/offenders index. 45—Access to and use of DNA database system (1) A person must not access information stored on the DNA database system except in accordance with this section. Maximum penalty: $10 000 or imprisonment for 2 years. (2) A person authorised by the Commissioner of Police may access information stored on the DNA database system for 1 or more of the following purposes: (a) for the purpose of comparing a DNA profile stored on an index of the DNA database system with any other DNA profiles stored on the DNA database system; (b) for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005; (c) for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law; (d) for the purpose of a coronial inquest or inquiry; (e) for the purpose of making the information available to the person to whom the information relates; (f) for the purpose of administering the DNA database system; (g) for the purpose of an arrangement entered into by the Minister under section 41(2); (h) for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth; (i) for the purpose of an investigation by the Ombudsman; (ia) for the purpose of an investigation under the Police Complaints and Discipline Act 2016; (j) for the purpose of an audit under section 57; (k) for any other purpose prescribed by regulation. (3) A person who has access to information stored on the DNA database system— (a) must not compare a DNA profile stored on the volunteers (limited purposes) index with a DNA profile stored on another index of the DNA database system if the person who gave consent to the storage of that DNA profile on the volunteers (limited purposes) index has imposed a condition on the consent that prohibits that comparison; and (b) must, in comparing a DNA profile stored on an index of the DNA database with any other DNA profiles stored on the DNA database system, comply with any other limitations or requirements prescribed by regulation. (4) However, a person who has access to information stored on the DNA database system may compare DNA profiles stored on the DNA database system in contravention of subsection (3) if the comparison is made solely for the purposes of administering the DNA database system. (5) Without limiting the actions that may be taken for the purpose of administering the DNA database system, the comparison of a DNA profile stored on an index of the DNA database system with any DNA profiles included in the quality assurance register is a comparison made for the purpose of administering the DNA database system. 46—Removal of information from DNA database system (1) The Commissioner of Police must ensure that— (a) a DNA profile derived from forensic material obtained under this Act is not retained on the DNA database system beyond the time the destruction of the material is required under this Act; and (b) a DNA profile derived from forensic material obtained under a corresponding law is not retained on the DNA database system beyond the time the destruction of the material is required under the corresponding law. Note— This means, for example, that where an order is made authorising the retention of forensic material for a specified period, a DNA profile derived from the material can remain on the database for that specified period (but will have to be removed when the material is required to be destroyed). (2) A DNA profile derived from biological material of a missing person that has been stored on the missing persons index of the DNA database system must, if the missing person is found and requests, in writing, removal of the DNA profile, be removed from that index as soon as practicable after the request. (3) A person who intentionally or recklessly causes information to be retained on the database system in contravention of this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (4) For the purposes of this section, a DNA profile derived from forensic material or biological material obtained from a person will be taken to have been removed from the DNA database system, or from an index of the DNA database system, if the database or index is altered so that it is no longer possible to identify the person from whom the material was obtained. Part 6—Evidence 47—Effect of non-compliance on admissibility of evidence (1) If a police officer or other person with responsibilities under this Act (other than a person acting as an appropriate representative of a protected person under this Act) contravenes a requirement of this Act in relation to— (a) a forensic procedure; or (b) forensic material obtained from a forensic procedure; or (c) a DNA profile derived from such forensic material, evidence obtained as a result of the forensic procedure is not admissible in evidence against the person on whom the procedure was carried out unless— (d) the person does not object to the admission of the evidence; or (e) the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention. (2) In deciding whether evidence should be admitted in the interests of the proper administration of justice, the court must have regard to the following matters: (a) the probative value of the evidence; (b) the seriousness of the contravention and, in particular, whether it was intentional or reckless; (c) the extent to which the defendant has been prejudiced by the contravention; (d) any other relevant factors. (3) Evidence obtained by carrying out a volunteers and victims procedure on a person is inadmissible in any criminal proceedings against that person if, by the time the question of its admissibility arises, the forensic material obtained from the procedure should have been destroyed. 48—Admissibility of evidence of denial of consent, obstruction etc (1) Evidence that a person refused or failed to give consent, or withdrew consent, to a forensic procedure, or refused consent under section 43, is inadmissible, without the consent of the person, in any criminal proceedings against the person. (2) However, evidence that a person obstructed or resisted the carrying out of a suspects procedure or an offenders procedure authorised under this Act is admissible in any criminal proceedings against the person subject to the ordinary rules governing the admissibility of evidence. 48A—Inadmissibility of evidence relating to forensic procedure under Part 2 Division 4 The results of a test of forensic material obtained from a person by carrying out a forensic procedure under Part 2 Division 4 or any admission or statement made by a person in relation to such a forensic procedure— (a) will not be admissible in evidence against the person who submitted to the forensic procedure in any proceedings, other than— (i) proceedings for an offence against this Act; or (ii) civil proceedings in connection with death or bodily injury caused by or arising out of the serious offence to which the forensic procedure relates; and (b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant. 49—Evidentiary certificates (1) In any proceedings for a criminal offence, a certificate— (a) purporting to be signed by a senior police officer and to certify— (i) that a forensic procedure was carried out on a person specified in the certificate on a date and at a time and place specified in the certificate and that the procedure was carried out in compliance with the provisions of this Act relating to the conduct of forensic procedures; or (ii) that forensic material obtained by carrying out a specified forensic procedure was dealt with in a manner specified in the certificate; or (b) purporting to be signed by the Commissioner of Police and to certify that powers or functions specified in the certificate were exercised in accordance with an arrangement entered into under section 56; or (c) purporting to be signed by an analyst and to certify that specified forensic material was dealt with in a manner specified in the certificate, is, in the absence of evidence to the contrary, proof of the matters so certified. (2) In this section— analyst means— (a) a person appointed by the Minister as an analyst for the purposes of this Act; or (b) a person holding an office of a class approved by the Minister for the purposes of this Act. Part 7—Miscellaneous 50—Confidentiality (1) A person who has, or has had, access to information obtained under this Act or information stored on the DNA database system must not disclose the information unless— (a) the disclosure is necessary for criminal investigation purposes or a missing persons inquiry; or (b) the disclosure is necessary for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005; or (c) the disclosure is necessary for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law; or (d) the disclosure is necessary for the purpose of a coronial inquest or inquiry; or (e) the disclosure is necessary for the purpose of making the information available to the person to whom the information relates; or (f) the disclosure is necessary for the purpose of administering the DNA database system; or (g) the disclosure is necessary for the purpose of an arrangement entered into by the Minister under section 41(2); or (h) the disclosure is necessary for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth; or (i) the disclosure is necessary for the purpose of an investigation by the Ombudsman; or (ia) the disclosure is necessary for the purpose of an investigation under the Police Complaints and Discipline Act 2016; (j) the disclosure is necessary for the purpose of an audit under section 57; or (k) the disclosure is made to a legal practitioner and is made for the purpose of obtaining legal advice; or (l) the information is publicly known; or (m) the disclosure is necessary for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure was carried out; or (n) the disclosure is necessary for the medical treatment of the person to whom the information relates or any other person; or (o) the person to whom the information relates consents to the disclosure; or (p) the information is disclosed for a purpose of a kind prescribed by regulation. (2) A person who intentionally or recklessly discloses information in contravention of this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. 50A—Release and disclosure for scientific purposes (1) Despite any provision of this Act or any other Act or law, a prescribed authority may authorise the release, disclosure and use of forensic material and information obtained under this Act for the following purposes: (a) the validation or development of forensic methodologies; (b) the furtherance of forensic research and methodologies. (2) Forensic material and information released, disclosed or used under subsection (1) may only be released, disclosed or used in a manner such that it is not possible to identify the person from whom the material or information was obtained or to whom the material or information relates. (3) Subsection (1) does not apply to forensic material or information obtained by carrying out a volunteers and victims procedure on a person if the DNA profile of that person is contained only on a volunteers (limited purposes) index. 51—Restriction on publication A person must not intentionally or recklessly publish by newspaper, radio, television or in any other way, a report of proceedings under this Act containing the name of a person suspected of a serious offence, or other information tending to identify the person, unless— (a) the person consents to the publication; or (b) the person has been charged with the suspected offence or a related serious offence. Maximum penalty: $5 000 or imprisonment for 1 year. 52—State Records Act 1997 not to apply The State Records Act 1997 does not apply to forensic material or the DNA database system. 53—Forensic material lawfully obtained in another jurisdiction Forensic material lawfully obtained under a law of another jurisdiction (before or after the commencement of this section) may be retained and used in this State in accordance with this Act despite the fact that the material was obtained in circumstances in which this Act would not authorise the material to be obtained, or in accordance with requirements that are less stringent than (or are otherwise substantively different to) the requirements that would apply under this Act. 54—Subsequent procedure where insufficient material obtained (1) If forensic material obtained as a result of a suspects procedure or an offenders procedure proves to be insufficient— (a) in the case of an intrusive forensic procedure authorised by order under Part 2 Division 2—that procedure may be carried out again if a new order authorising the procedure is made; or (b) in any other case—that procedure may be carried out again without any further authorisation under this Act. (2) Without limiting subsection (1), forensic material may prove to be insufficient if the material has become unavailable or insufficient for the purpose of enabling information, or information of a particular description, to be obtained by means of analysis of the material, as a consequence of— (a) the loss, destruction or contamination of the whole or any part of the material; or (b) any damage to the whole or a part of the material; or (c) the use of the whole or a part of the material for an analysis which produced no results or which produced results some or all of which must be regarded, in the circumstances, as unreliable. 55—Power to require forensic procedure on deceased person (1) A senior police officer may, by instrument in writing, authorise the carrying out of a forensic procedure specified in the instrument on the body, a body part, human tissue or other human remains of a deceased person if satisfied that the evidence obtained from the carrying out of the procedure is likely to assist in the investigation of a serious offence or in the identification of the deceased person. (2) If a senior police officer has authorised the carrying out of a forensic procedure under this section, a police officer, accompanied by such assistants as the officer thinks necessary, may— (a) enter premises (using such force as is necessary) in which the officer reasonably believes the body of the deceased person is located; and (b) search the premises for the body, and, on finding the body, the authorised forensic procedure may be carried out in accordance with this section. (3) A police officer must not exercise a power to enter premises under subsection (2) unless the officer has made a reasonable attempt to contact the occupier of the premises and advise the occupier of the intention to exercise such powers. (4) If the body of the deceased person is located at a hospital or other place at which a post‑mortem examination of the body is being, or has been, conducted, the occupier of the premises may, despite any other Act or law, agree— (a) to arrange for the authorised forensic procedure to be carried out in accordance with this section and provide forensic material obtained by carrying out that procedure to the Commissioner of Police; or (b) if the material sought to be obtained from carrying out the forensic procedure has already been obtained in the course of the post-mortem examination of the body, to provide such material to the Commissioner of Police. (5) A forensic procedure authorised under this section must be carried out by— (a) a medical practitioner; or (b) a person who is qualified as required by the regulations to carry out forensic procedures of the relevant type. (6) A person carrying out a forensic procedure authorised under this section may be assisted by a police officer or other person. (7) Nothing in this section authorises the exhumation of a body. 56—Arrangements with other jurisdictions (1) The Minister may enter into an arrangement with the Minister responsible for the administration of a corresponding law providing for— (a) the exercise of functions or powers under this Act by police officers of the jurisdiction in which the corresponding law is in force; and (b) the exercise of functions or powers under a corresponding law by police officers of this State. (2) The Minister may enter into an arrangement with the Minister responsible for the administration of a corresponding law, providing for— (a) the registration in this jurisdiction of orders made under the corresponding law; and (b) the registration under the corresponding law of orders made under this Act. (3) An order that is registered under subsection (2) may be enforced in the same way as if it were an order under this Act. (4) The regulations may make further provision with respect to arrangements under this section. (5) Subject to any limitations prescribed by regulation, an arrangement entered into under this section has effect according to its terms. 57—Compliance audits (1) The Ombudsman must conduct an annual audit to monitor compliance with this Act. (2) The Commissioner of Police must ensure that the Ombudsman is provided with such information as it may require for the purpose of conducting an audit under this section. (3) A report on an annual audit must be presented to the Attorney‑General on or before 30 September in each year. (4) The Attorney‑General must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament. 58—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), those regulations may make provision for or relating to— (aa) the carrying out of forensic procedures under Part 2 Division 4, the testing of forensic material obtained by such forensic procedures for communicable diseases (including by prohibiting the carrying out of tests of a specified kind) and the communication of the results of such testing to a specified person or body; and (a) fees in respect of any matter under this Act and their payment, recovery or waiver; and (b) fines, not exceeding $2 500, for offences against the regulations; and (c) facilitation of proof of the commission of offences against the regulations. (3) The regulations may— (a) be of general application or vary in their application according to prescribed factors; and (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the Commissioner of Police. Schedule 1—Transitional provisions Part 4—Transitional provisions 6—Retention of fingerprints etc obtained in accordance with Summary Offences Act 1953 Where photographs, prints or recordings have, before the commencement of Part 2 Division 2 of this Schedule, been taken in respect of a person under section 81(4) of the Summary Offences Act 1953, or a person has supplied a sample of his or her handwriting under that subsection, any requirement to destroy that material under subsection (4f) of that section will be taken not to apply to the material and to have never applied to the material. 7—Material obtained in accordance with repealed Act (1) Forensic material obtained as a result of a forensic procedure authorised under Part 2B of the repealed Act will be taken to be forensic material obtained as a result of a forensic procedure authorised under Part 2 Division 1 of this Act. (2) Forensic material obtained as a result of a forensic procedure authorised under Part 3 of the repealed Act (whether authorised by informed consent, the making of an interim order or the making of a final order under that Part) will be taken to be forensic material obtained as a result of a forensic procedure authorised under Part 2 Division 2 of this Act. (3) Forensic material obtained as a result of a forensic procedure authorised under Part 3A of the repealed Act will be taken to be forensic material obtained as a result of a forensic procedure authorised under Part 2 Division 3 of this Act. 8—Retention and assimilation orders under repealed Act (1) An order made under section 43 of the repealed Act that is in force on the commencement of this clause will be taken to be an order under section 36 of this Act. (2) An order made under section 44 of the repealed Act that is in force on the commencement of this clause will be taken to be an order under section 37 of this Act. 9—Continuation of DNA database system (1) The DNA database system maintained by the Commissioner under the repealed Act forms part of the DNA database system under this Act. (2) Information that was, immediately before the commencement of this clause, stored on the suspects index or the offenders index of the DNA database system maintained by the Commissioner under the repealed Act will be taken to be stored on the suspects/offenders index of the DNA database system under this Act. 10—Validation provision For the purposes of any proceedings, contravention of a requirement of section 40, 44C, 44D or 46C of the repealed Act in relation to a forensic procedure, forensic material or a DNA profile derived from forensic material will be taken not to be contravention of a requirement of the repealed Act and will not affect the admissibility of any evidence obtained from, or relating to, the procedure, material or DNA profile. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Legislation repealed by principal Act The Criminal Law (Forensic Procedures) Act 2007 repealed the following: Criminal Law (Forensic Procedures) Act 1998 Legislation amended by principal Act The Criminal Law (Forensic Procedures) Act 2007 amended the following: Child Sex Offenders Registration Act 2006 Summary Offences Act 1953 Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 2007 5 Criminal Law (Forensic Procedures) Act 2007 29.3.2007 14.5.2007 (Gazette 10.5.2007 p1977) 2012 52 Independent Commissioner Against Corruption Act 2012 6.12.2012 Sch 3 (cll 14—16)—20.12.2012 (Gazette 20.12.2012 p5742) 2013 41 Child Sex Offenders Registration (Miscellaneous) Amendment Act 2013 3.10.2013 Sch 1 (cl 2)—22.12.2013 (Gazette 19.12.2013 p4923) 2015 11 Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015 9.7.2015 12.12.2016 (Gazette 8.12.2016 p4902) 2016 28 Statutes Amendment (Attorney-General's Portfolio) Act 2016 16.6.2016 Pt 5 (ss 10, 11 & 13—16)—16.6.2016: s 2(1); s 12—12.12.2016: s 2(2) 2016 35 Statutes Amendment (Gender Identity and Equity) Act 2016 4.8.2016 Pt 4 (ss 9 & 10)—8.9.2016 (Gazette 8.9.2016 p3676) 2016 60 Police Complaints and Discipline Act 2016 8.12.2016 Sch 1 (cl 7)—19.4.2017 (Gazette 19.4.2017 p1101); cll 5 & 6—4.9.2017 (Gazette 29.8.2017 p3794) 2017 35 Statutes Amendment (National Policing Information Systems and Services) Act 2017 22.8.2017 Pt 3 (s 4)—22.8.2017 2019 17 Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 1.8.2019 Sch 1 (cl 1)—3.10.2019 (Gazette 3.10.2019 p3398) 2025 33 Criminal Law (Forensic Procedures) (Blood Testing) Amendment Act 2025 28.8.2025 1.4.2026 (Gazette 29.1.2026 p129) Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Long title amended under Legislation Revision and Publication Act 2002 20.12.2012

amended by 11/2015 s 4 12.12.2016 Pt 1

s 2 omitted under Legislation Revision and Publication Act 2002 20.12.2012 s 3

s 3(1)

gun shot residue procedure inserted by 28/2016 s 10(1) 16.6.2016 intrusive forensic procedure amended by 28/2016 s 10(2) 16.6.2016

amended by 35/2016 s 9 8.9.2016 simple forensic procedure inserted by 28/2016 s 10(3) 16.6.2016 suspects procedure substituted by 11/2015 s 5 12.12.2016 Pt 2

Pt 2 Div 2

s 14

s 14(2) amended by 28/2016 s 11 16.6.2016 Pt 2 Div 3

s 20

s 20(2) amended by 41/2013 Sch 1 cl 2 22.12.2013 Pt 2 Div 4 inserted by 11/2015 s 6 12.12.2016 s 20A

emergency services provider amended by 33/2025 s 3(1) 1.4.2026 medical practitioner deleted by 33/2025 s 3(2) 1.4.2026 prescribed employment amended by 28/2016 s 12 12.12.2016

substituted by 33/2025 s 3(3) 1.4.2026 prescribed serious offence amended by 17/2019 Sch 1 cl 1 3.10.2019

amended by 33/2025 s 3(4), (5) 1.4.2026 s 20B substituted by 33/2025 s 4 1.4.2026 Pt 3

s 21

s 21(3) amended by 35/2016 s 10(1), (2) 8.9.2016 s 28

note inserted by 33/2025 s 5 1.4.2026 s 31

s 31(1) amended by 11/2015 s 7 12.12.2016 Pt 4

s 34A inserted by 11/2015 s 8 12.12.2016 s 39A inserted by 11/2015 s 9 12.12.2016 Pt 5

s 41

s 41(2) amended by 28/2016 s 13(1), (2) 16.6.2016

amended by 35/2017 s 4(1) 22.8.2017 s 41(3)

ACC inserted by 35/2017 s 4(2) 22.8.2017 CrimTrac deleted by 35/2017 s 4(2) 22.8.2017 NCIDD deleted by 28/2016 s 13(3) 16.6.2016 s 42

s 42(1) amended by 28/2016 s 14 16.6.2016 s 45

s 45(2) amended by 52/2012 Sch 3 cl 14 20.12.2012

amended by 60/2016 Sch 1 cl 5(1), (2) 4.9.2017 Pt 6

s 48A inserted by 11/2015 s 10 12.12.2016 Pt 7

s 50

s 50(1) amended by 52/2012 Sch 3 cl 15 20.12.2012

amended by 60/2016 Sch 1 cl 6(1), (2) 4.9.2017 s 50A inserted by 28/2016 s 15 16.6.2016 s 55

s 55(1) substituted by 28/2016 s 16 16.6.2016 s 57

s 57(1) amended by 52/2012 Sch 3 cl 16 20.12.2012

amended by 60/2016 Sch 1 cl 7(1) 19.4.2017 s 57(2) amended by 52/2012 Sch 3 cl 16 20.12.2012

amended by 60/2016 Sch 1 cl 7(2) 19.4.2017 s 58

s 58(2) amended by 11/2015 s 11 12.12.2016 Sch 1

Pts 1—3 omitted under Legislation Revision and Publication Act 2002 20.12.2012 Historical versions 20.12.2012

22.12.2013

16.6.2016

8.9.2016

12.12.2016

19.4.2017

22.8.2017

4.9.2017

3.10.2019

1 Criminal Law (Forensic Procedures) Act 2007

The Act rests on a small number of core legal categories and index structures that determine authorisation, evidentiary effect and storage rights.

Forensic procedure and forensic material: The Act defines "forensic procedure" broadly to include taking prints (hands, fingers, feet, toes), examinations that disturb clothing or involve physical contact, sampling of biological or other material from the body (including buccal swabs, blood, saliva, hair taken from the body), and impressions or casts of body parts (s 3(1), definition of forensic procedure and examples). "Forensic material" is material obtained by carrying out a forensic procedure (s 3(1)). The Act separates simple identity procedures (prints, buccal swabs or finger‑prick for DNA profile) from intrusive forensic procedures (exposure/contact with genital/anal/breast areas, dental impressions, blood sampling) (s 3(1) definitions of simple forensic procedure and intrusive forensic procedure).

Protected person and relevant person: A "protected person" in Division 1 is a child under 16 or a person physically or mentally incapable of understanding consequences (s 6; cf. general “protected person” definition in s 3(1) which uses under-18 for other provisions). For volunteers and victims procedures the "relevant person" who gives consent is either the person themselves (if not a protected person) or the closest available next of kin or guardian depending on age and capacity (s 6). The Act defines "closest available next of kin" hierarchically (parents, siblings, spouse, children, etc.) (s 3(1)).

Authorisation pathways: The Act implements four distinct authorisation regimes.

Volunteers and victims procedures (Part 2 Div 1): generally consent‑based, but a senior police officer may authorise in specified circumstances for protected persons (ss 7-9). Consent can be oral/written or unequivocal indication (s 8). Consent may be withdrawn pre‑completion and withdrawal affects admissibility (s 10).
Suspects procedures (Part 2 Div 2): where a person is suspected of a serious offence, simple forensic procedures can be carried out; more intrusive or non‑simple procedures require an order by a senior police officer after an informal hearing, subject to statutory balancing (ss 14-19). There is a special urgent application regime where the respondent cannot be located (s 18).
Offenders procedures (Part 2 Div 3): simple identity procedures may be taken from persons serving sentences, detained under supervision, convicted of a serious offence, declared liable to supervision, or registrable persons (s 20).
Blood testing for communicable diseases (Part 2 Div 4): a senior police officer may authorise blood sampling for communicable disease testing where a person is suspected of a prescribed serious offence and a person in prescribed employment may have been exposed (ss 20A-20B). The material obtained is limited in use to communicable disease testing (s 34A) and must be destroyed after testing (s 39A).

DNA database system and indices: Part 5 (s 40) defines the DNA database system as including separate indices: crime scene, missing persons, unknown deceased, suspects/offenders, volunteers (limited and unlimited) and a statistical index. The volunteers indices reflect different consent levels and prohibitions on comparisons: the volunteers (limited purposes) index is where specific consent includes a condition prohibiting comparison with specified indexes (s 40). The Act prescribes how and when DNA profiles may be stored, who may transfer profiles (assimilation orders, s 37; transfer after an assimilation order, s 44), and who may access and for what purposes (s 45). Storage outside the DNA database system is an offence except in narrow circumstances (s 42).

Retention and assimilation orders, destruction: The Act provides a framework where a person who consented to a volunteers and victims procedure can request destruction of the material (s 39). Police may apply for retention orders if material is potentially probative (s 36). Assimilation orders allow volunteers material to be treated as if obtained by a suspects procedure, enabling storage on suspects/offenders index (s 37). Destruction timelines and postponement rules are set out (s 39(1)-(5), s 39A).

Admissibility and evidentiary rules: Non‑compliance by police or other persons with the Act (other than appropriate representatives) renders evidence inadmissible except when the person does not object or the court admits it in the interests of justice (s 47). Specific protections exist for evidence of refusal/withdrawal of consent (s 48) and for results from blood testing under Part 2 Div 4 which are inadmissible against the person except in narrow circumstances (s 48A). Evidentiary certificates signed by senior police, the Commissioner or an analyst are deemed proof of matters certified absent contrary evidence (s 49).

Access, confidentiality, audits and inter‑jurisdictional arrangements: The Act restricts disclosure of DNA/database information, allowing disclosure only for enumerated purposes (investigation, prosecutions, coronial, administration, audits, specified mutual assistance arrangements, Ombudsman and police discipline investigations, legal advice etc.) and creates criminal penalties for inappropriate disclosure (s 50). It provides for scientific release in anonymised form for forensic methodology development (s 50A). Inter‑jurisdictional exchange and registration of orders are authorised via arrangements under s 41 and s 56. The Ombudsman must conduct annual compliance audits and the Commissioner must provide materials (s 57).

These core concepts structure decision rights (senior police officers, Commissioner, Minister), individual rights (consent, withdrawal, interpreter, witness, copies), evidentiary rules, data governance and penalties for breach.

The statute names specific actors and categories of persons who will carry the costs or exercise powers under the regime.

Individuals on whom forensic procedures may be performed: The Act directly affects volunteers, victims, suspects and offenders. Volunteers and victims procedures (Part 2 Div 1) apply to persons not suspected of a serious offence or to protected persons in particular (ss 7-9). Suspects procedures (Part 2 Div 2) apply to persons suspected, on reasonable grounds, of a serious offence (s 3(4) and s 14). Offenders procedures (Part 2 Div 3) apply to persons serving sentences, under supervision regimes, convicted of serious offences, or registrable offenders (s 20). Protected persons , children (variously defined under 16 in Div 1 and under 18 elsewhere) and persons incapable of understanding consequences , have particular consent and representation protections (s 3(1); s 6).

Next of kin, guardians and appropriate representatives: For protected persons the consent and representation rules vest decision authority in closest available next of kin, guardians, or appropriate representatives (ss 3(1) definition, 6, 17(3)). Closest available next of kin is expressly ordered by priority (s 3(1)). Those persons have procedural rights to be given information, to object (s 11) and to receive statements, and a time‑limited power to request destruction if consent was given when the person was protected (s 39(3)).

Police, senior police officers and the Commissioner of Police: Operational decision authority rests largely with the police. Senior police officers may authorise procedures on protected persons where consent is impracticable (s 9), may make orders authorising suspects procedures after a hearing (s 19), may make retention and assimilation orders for volunteers material (ss 36-37), and may authorise blood sampling for communicable disease testing under the prescribed regime (s 20B). The Commissioner maintains the DNA database system (s 41), is responsible for setting aside sample parts after suspects/offenders procedures (s 33), ensuring destruction timelines (ss 39, 39A), providing audiovisual playback arrangements and supplying copies for a fee (s 26), and supplying information to the Ombudsman for audits (s 57).

Medical practitioners, analysts, laboratories and qualified personnel: The Act requires qualified persons to perform procedures (s 24). Specific references are made to medical practitioners for certain procedures and, in earlier provisions, to dentists for mouth/teeth contexts (s 3(1) definitions), although the amendment notes indicate the definition of medical practitioner was altered by later amendments (see legislative history). Analysts are persons appointed by the Minister and their certificates are admissible evidence (s 49). Laboratories and analysts that store DNA profiles are subject to storage offences if they keep profiles outside the DNA database system (s 42). The Commissioner may authorise databases for backup storage (s 42(1)(ba)).

Ministers, regulators and Ombudsman: The Minister can enter into inter‑jurisdictional arrangements (s 41(2)), and is empowered to make regulations (s 58). The Ombudsman conducts annual audits of compliance and receives information from the Commissioner (s 57). The Attorney‑General approves forms for written statements provided on destruction rights and for consents (ss 12(1), 43(2)(a)).

Other public authorities and external agencies: The Act contemplates information exchange with Commonwealth authorities such as the Australian Crime Commission and the ACC in the national database context (s 41(2)). It allows for making information available under the Mutual Assistance in Criminal Matters Act 1987 and Extradition Act 1988 (s 45(2)(h)). Hospitals and emergency services are specifically in scope for the communicable disease testing provisions (Part 2 Div 4, s 20A definitions), and certain public employment classes are prescribed for exposure tests (s 20A definition of prescribed employment). Courts and coroners are users of DNA database information under the enumerated permitted purposes (s 45(2)(b), (d)).

Private sector providers and research institutions: Private laboratories, forensic suppliers, and research institutions are affected by storage and disclosure rules. Storing a DNA profile on a database other than the DNA database system is an offence unless it is anonymised or within prescribed exceptions (s 42). The Act permits prescribed authorities to release de‑identified forensic material for forensic research and validation provided identification is not possible (s 50A). Entities that provide audiovisual copies or other regulated services will be subject to the fee and regulation regime (s 26(3); s 58(2)(a)).

Individuals seeking legal advice or subject to proceedings: Respondents to applications, defendants in criminal proceedings, and legal practitioners are affected by the evidentiary scheme (Part 6). A respondent may be represented at a suspects procedure hearing (s 17) and may receive copies of orders and records (s 19(4), s 38(10)). The Act also restricts publication of names of persons suspected of serious offences pending charge (s 51).

Overall, the Act concentrates operational decision‑making power in police hierarchy and the Commissioner for forensic information management while allocating specific procedural protections and rights to individuals, representatives and medical/forensic professionals. These rules impose compliance obligations on public agencies, professionals who carry out procedures, laboratories and entities handling DNA information, and create criminal and administrative consequences for unauthorised handling or disclosure.

This section summarises the substantive obligations the Act imposes on decision‑makers and the rights it confers on subjects of forensic procedures. Each duty or right is anchored to the statutory provision.

Consent, information and withdrawal: For volunteers and victims procedures, the relevant person must consent (s 7(2)(b)(i); s 8). Before or after the procedure, the person who carries out the procedure must provide the relevant person with a written statement, in a form approved by the Attorney‑General, explaining the right to request destruction of the material (s 12(1)). Consent may be withdrawn at any time before completion of the procedure and withdrawal operates to revoke authority; if authority is withdrawn and the procedure is continued without new authorisation, evidence obtained is inadmissible (s 10(1)-(4)). For volunteers indices, specific consent is required before DNA profiles derived from volunteers procedures may be stored on the volunteers (limited or unlimited) indices (s 43(1)) and police must read and give the prescribed written statement and, where consent is oral, make an audio/audiovisual record and provide a copy (s 43(2)-(6)).

Authorisation duties for police and senior police officers: Senior police officers have the power to authorise various non‑consensual procedures. For protected persons, a senior police officer may authorise a volunteers and victims procedure by written instrument only if impracticable to obtain consent and the officer is satisfied the procedure is justified (s 9). For suspects procedures, a senior police officer may make orders after an informal hearing and must be satisfied as to reasonable grounds that the person is suspected of a serious offence, that the forensic procedure could produce material of value, and that the public interest in obtaining evidence outweighs the interest in privacy from unwanted interference (s 19(1)-(2)). Senior police officers must make written records of orders and reasons and provide copies to the respondent (s 19(3)-(4)). The Commissioner must ensure set‑aside samples for persons subject to suspects/offenders procedures and protect them from degradation (s 33).

Procedural protections: Respondents may be represented by a legal practitioner (s 17(1)). Protected respondents must have an appropriate representative (s 17(2)-(3)). If the person is not reasonably fluent in English they have the right to be assisted by an interpreter and to have an interpreter present during the procedure if requested (s 22). Intrusive procedures require that the person be allowed reasonable opportunity, at their expense, to arrange for a medical practitioner of their choice to witness (s 25(1)). If an intrusive procedure is a suspects procedure, it must be audiovisually recorded; for volunteers and victims intrusive procedures the recording occurs at the person's request (s 26(1)).

Standards and qualifications: Forensic procedures must be carried out humanely and with care to avoid offending cultural values and avoid unnecessary physical harm, humiliation or embarrassment (s 21). They must be consistent with appropriate medical or other professional standards (s 23). A person carrying out a forensic procedure must be a medical practitioner or a person qualified as prescribed by regulation (s 24(1)), and may be assisted by police or others (s 24(2)). The Act also allows for quality assurance via a register of DNA profiles of police officers, persons conducting procedures and analysts (s 3(1) definition of quality assurance register).

Data duties and limitations: The Commissioner must ensure DNA profiles are not retained beyond the period required under the Act or a corresponding law (s 46(1)). A person who stores a DNA profile derived from forensic material on a database other than the DNA database system is guilty of an offence unless narrowly excepted (s 42(1)). Access to and use of the DNA database system is limited to authorised persons and specified purposes; unauthorised access is an offence (s 45(1)-(2)). Special protections apply to volunteers (limited) index where conditions prohibiting comparison must be respected (s 45(3)).

Retention, assimilation and destruction duties: Where volunteers and victims material is obtained from a protected person and the relevant person requests destruction, the Commissioner must ensure destruction within 21 days unless a retention order has been made (s 39(1), (4)). A senior police officer may make a retention order if satisfied proffered reasons are met (s 36). A senior officer may order forensic material obtained by volunteers procedures to be treated as if obtained by a suspects procedure (assimilation order) if certain grounds exist (s 37). For Part 2 Div 4 material (blood testing for communicable diseases), the Act limits use of the material to disease testing (s 34A) and requires destruction after testing as soon as reasonably practicable (s 39A).

Use of force, directions and warrant powers: Where a person is not in lawful custody, a police officer may issue directions about time, place and custody while the procedure is carried out; failure to comply allows an application to the Magistrates Court for a warrant to arrest and bring the person for the procedure (s 29(1)-(4)). Police must warn the person before a forensic procedure that reasonable force may be used and that obstructing the procedure may be admissible as evidence (s 30). Those authorised to carry out procedures may use reasonable force to carry out the procedure and to protect material obtained (s 31(1)).

Evidence and admissibility rights: Where police or other officers contravene a requirement of the Act, the evidence is not admissible unless the person does not object or the court admits it in the interests of justice; the court must consider probative value, seriousness of contravention and prejudice to the defendant (s 47). Evidence of refusal or withdrawal of consent is inadmissible without the person's consent (s 48(1)). Results and statements relating to blood testing procedures under Part 2 Div 4 are inadmissible against the person (s 48A).

Confidentiality and publication restrictions: Persons with access to information obtained under the Act must not disclose it except for enumerated purposes (s 50(1)). Publication of the name of a person suspected of a serious offence is prohibited unless the person consents or has been charged (s 51). Criminal penalties apply for unauthorised disclosure or publication (s 50(2), s 51).

Audit and oversight rights and duties: The Ombudsman must conduct annual compliance audits (s 57). The Commissioner must provide information to the Ombudsman and the Attorney‑General must table the audit in Parliament within specified timeframes (s 57(2)-(4)).

These duties and rights create an operational framework where police decision‑makers have broad powers subject to procedural safeguards, recordkeeping duties and data governance constraints, and individuals retain specific consent, representation and destruction rights with statutory consequences for failure to respect them.

The Act combines criminal offences, administrative remedies, and admissibility consequences to enforce compliance. The provisions specify maximum penalties, warrant mechanisms, and evidentiary consequences.

Specified criminal offences and penalties:

Obstruction: Intentionally obstructing or resisting a suspects or offenders procedure is an offence carrying a maximum penalty of imprisonment for two years (s 32). This applies to procedures within Division 2 of Part 3 (suspects and offenders).
Unauthorised storage of DNA profiles: A person who stores a DNA profile derived from forensic material on a database other than the DNA database system is guilty of an offence, unless narrow exceptions apply; maximum penalty $10,000 or imprisonment for two years (s 42(1)). Relatedly, intentionally or recklessly supplying biological material for the purpose of storing a DNA profile on the DNA database system or storing a DNA profile on the DNA database system when not authorised is an offence (s 42(2)) with the same maximum penalty.
Unauthorised access to DNA database system: A person must not access information stored on the DNA database system except in accordance with s 45; maximum penalty $10,000 or imprisonment for two years (s 45(1)).
Improper retention: A person who intentionally or recklessly causes information to be retained on the DNA database system contrary to s 46 is guilty of an offence, maximum penalty $10,000 or imprisonment for two years (s 46(3)).
Confidentiality breaches: Intentional or reckless disclosure of information obtained under the Act is an offence, maximum penalty $10,000 or imprisonment for two years (s 50(2)).
Publication restriction: Intentionally or recklessly publishing a report of proceedings containing the name of a person suspected of a serious offence or information tending to identify them, unless they consent or have been charged, is an offence with maximum penalty $5,000 or imprisonment for one year (s 51).

Administrative and enforcement powers:

Warrant for non‑compliance with directions: If a person fails to comply with directions for the carrying out of a forensic procedure (time, place, manner, custody), a police officer may apply to the Magistrates Court for a warrant to arrest and bring the person to a police station for the purpose of carrying out the procedure; the Court must issue the warrant if satisfied as to non‑compliance (s 29(3)-(4)).
Use of reasonable force: Persons authorised under the Act to carry out procedures or assist may use reasonable force to effect the procedure and protect material (s 31(1)). The Act clarifies that the use of force to detain a person under this section does not by itself constitute an arrest (s 31(2)).
Exemption from liability: Civil or criminal liability is excluded where a person genuinely believes the procedure is authorised under the Act and the act or omission is reasonable in the circumstances (s 27). This creates an evidence‑based protective clause for those acting in good faith under statutory authorisation.
Admissibility consequences: Non‑compliance by police or other responsible persons (excluding appropriate representatives) with the Act renders evidence inadmissible in criminal proceedings unless the defendant does not object or the court is satisfied the evidence should be admitted in the interests of justice; the court must weigh probative value, seriousness of contravention, prejudice to the defendant, and other factors (s 47(1)-(2)). Evidence obtained by volunteers and victims procedures is specifically inadmissible where the material should have been destroyed at the time of challenge (s 47(3)).

Evidentiary mechanisms to streamline proof:

Certificates: Certificates purporting to be signed by senior police officers, the Commissioner of Police, or an analyst that certify that a procedure was carried out in compliance with the Act or that forensic material was dealt with in a specified manner are, absent contrary evidence, proof of the matters so certified (s 49(1)). This reduces the transaction costs and evidentiary burden for proving compliance.

Oversight and audit enforcement:

Ombudsman audits: The Ombudsman must conduct an annual audit to monitor compliance (s 57(1)). The Commissioner must provide information for those audits (s 57(2)). Reports must be presented to the Attorney‑General and tabled in Parliament, establishing an administrative oversight channel (s 57(3)-(4)).

Regulatory enforcement:

Regulations: The Governor may make regulations that include prescribed fees, fines (not exceeding $2,500) for regulatory offences, facilitation of proof, and other matters necessary for administration (s 58(1)-(2)). The regulations may also create discretionary determinations by the Minister or Commissioner (s 58(3)(b)).

Practical enforcement dynamics:

The interplay of criminal penalties, admissibility rules and administrative warrants gives the police and courts a range of enforcement tools: criminal sanctions for wilful or reckless misconduct, admissibility exclusion as a remedy for police procedural breaches, and compulsory powers (warrants, reasonable force) to secure compliance with lawful orders. The Act balances these enforcement levers with an express exemption for good‑faith acts that are reasonable in circumstances (s 27), and with oversight through the Ombudsman (s 57).

These mechanisms create both deterrence (through criminal penalties and evidence exclusion) and operational enforcement capacity (warrants, use of force, admissibility certificates), while also providing administrative oversight and regulatory structures to manage routine compliance.

The Act is framed to operate alongside other statutory regimes and to enable inter‑jurisdictional cooperation; the text specifies interactions and carve‑outs.

Non‑duplication and coexistence with other State laws: Section 4(1) starts by excluding forensic procedures authorised under another law of the State from the operation of the Act and excluding searches of a person from the Act’s scope. The explanatory note gives the example of breath, blood or oral fluid sampling under the Road Traffic Act 1961. Section 4(2) clarifies that the fact another law authorises a class of forensic procedure does not prevent authorisation under this Act unless the other law specifically excludes the Act’s operation. This creates a permissive coexistence regime between statutory powers where the more specific instrument may still be used.

Corresponding laws and inter‑jurisdictional arrangements: The Act contemplates and enables significant cross‑jurisdictional interaction. It defines "corresponding law" as a law of another jurisdiction that provides for carrying out forensic procedures and that is prescribed by regulation (s 3(1)). The Commissioner and Minister may enter arrangements with Ministers administering corresponding laws to exchange DNA database information, and to transmit information to Commonwealth authorities for inclusion in national databases and matching by the Australian Crime Commission (s 41(2)). Section 56 provides a mechanism for the Minister to enter arrangements for exercise of functions by police officers of other jurisdictions, registration of orders, and enforcement of registered orders as if made under this Act (s 56(1)-(3)). The Act also permits information exchange for mutual assistance and extradition purposes (s 45(2)(h)).

Effect on State Records and evidence law: The Act explicitly removes forensic material and the DNA database system from the operation of the State Records Act 1997 (s 52). Evidence rules are specialised: s 47 makes non‑compliance with procedural requirements relevant to admissibility, while s 49 allows production of certificates by senior police, analysts and the Commissioner as proof in absence of contrary evidence. These provisions overlay existing evidence law to create presumptions and exclusions specific to forensic procedures.

Handling of material lawfully obtained elsewhere: The Act permits forensic material lawfully obtained under another jurisdiction’s law to be retained and used in South Australia in accordance with the Act even when the collection circumstances would not themselves have been authorised under this Act (s 53). This provision removes domestic barriers to using out‑of‑jurisdictionly obtained material, subject to compliance with the Act’s retention and database rules.

Overlap with criminal law and specific offence statutes: The Act cross‑references serious offences under the Criminal Law Consolidation Act 1935 and summary offences (s 3(1) serious offence definition). It permits DNA database information use in proceedings for serious offences and proceedings under the Criminal Assets Confiscation Act 2005 (s 45(2)(b)). The blood‑testing provisions (Part 2 Div 4) cross‑reference specified prescribed serious offences and employment categories (s 20A). The Act also makes specific reference to the Mutual Assistance in Criminal Matters Act 1987 and the Extradition Act 1988 for purposes of information use (s 45(2)(h)).

Regulatory and administrative interfaces: The Act gives substantial regulatory scope to the Governor and Minister (s 58): regulations can prescribe details of Part 2 Div 4 testing, communication of results, fees, fines for regulatory offences, and permit matters to be determined at the discretion of the Minister or the Commissioner. This creates an interface between the primary statute and subordinate rule‑making which may affect operational detail including evidentiary requirements and fees.

Implications for health, employment and privacy regulation: The blood testing regime engages health‑sector actors, defining hospitals, emergency services providers and prescribed employment classes for exposure purposes (s 20A definitions). It restricts other uses of material obtained for communicable disease testing (s 34A) and requires destruction after testing (s 39A). The Act therefore interacts with public health and employment statutes and policies through both substantive limitation on data reuse and by procedural duty to destroy.

National and Commonwealth links: The Act contemplates transmission of DNA information to the Australian Crime Commission and arrangements for national database integration (s 41(2)). It also allows arrangements for national policing information systems (amendments referenced in the legislative history show prior steps to enable national exchange, see legislative history entries for 2017).

In sum, the Act is designed as a centralised State regime that both defers to and interfaces with other State and Commonwealth laws, with explicit powers to participate in national and inter‑jurisdictional database exchange, and with carve‑outs and exceptions that preserve other statutory regimes. These interactions heighten the importance of alignment between agency policies, hospital and laboratory practices, national database protocols, and regulation.

The legislative history appended to the Act and the "Provisions amended" table record a series of amendments since the principal Act was passed in 2007 (No 5 of 2007). The table and notes give the operative years and brief descriptions of the changes; the key items are summarised below with the provision references given in the Act’s legislative history.

Principal Act and early changes:

2007: Criminal Law (Forensic Procedures) Act 2007 received assent 29 March 2007 and commenced 14 May 2007. It repealed the Criminal Law (Forensic Procedures) Act 1998 (Schedule at head of Act).

Substantive insertions and reforms:

2012 (No 52): Independent Commissioner Against Corruption Act 2012 amended s 45(2) and s 50(1) with effect 20 December 2012 (Sch 3 clauses 14-16), introducing additional permitted uses and internal oversight linkages (see legislative history).
2013 (No 41): Child Sex Offenders Registration (Miscellaneous) Amendment Act 2013 amended s 20(2) with effect 22 December 2013 (Sch 1 cl 2), altering the scope of offenders procedures to align with child sex offender registry regimes.
2015 (No 11): Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015 inserted Part 2 Division 4 (ss 20A-20B), s 34A and s 39A to create a regime permitting authorised blood testing for communicable diseases in the context of prescribed serious offences and prescribed employment, and to require destruction of such material after testing (assent 9 July 2015; commencement 12 December 2016 per the table). The legislative history notes insertion of ss 34A and 39A by this amendment (Provisions amended list).
2016: Multiple amendments.
- Statutes Amendment (Attorney‑General's Portfolio) Act 2016 (No 28) made several changes to definitions and procedural provisions (s 10-16 in the Provisions amended list with commencement 16 June 2016 and later).
- Statutes Amendment (Gender Identity and Equity) Act 2016 (No 35) amended definitions relating to intrusive forensic procedure (8 September 2016).
2016-2017: Police Complaints and Discipline Act 2016 (No 60) amended s 45(2) and s 50(1) to include the Police Complaints and Discipline Act 2016 as a permitted purpose for disclosure and to insert oversight reporting references; provisions took effect in 2016 and 2017 per the table.

National systems and information exchange:

2017 (No 35): Statutes Amendment (National Policing Information Systems and Services) Act 2017 affected s 41 to update inter‑jurisdictional exchange language and introduced the ACC acronym insertion for cross‑Commonwealth exchange (Commenced 22 August 2017).

Offences and related amendments:

2019 (No 17): Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 amended the definition of prescribed serious offence to include specified assaults on emergency workers (sch 1 cl 1) with effect 3 October 2019.

Most recent change recorded:

2025 (No 33): Criminal Law (Forensic Procedures) (Blood Testing) Amendment Act 2025, assent 28 August 2025, commencement 1 April 2026 (Gazette 29.1.2026 p129). The "Provisions amended" notes show substantial substitutions affecting Part 2 Division 4: emergency services provider was amended, the definition of medical practitioner was deleted (33/2025 s 3(2)), prescribed employment was substituted, prescribed serious offence entries were amended by the 2025 Act, and s 20B was substituted by s 4 of the 2025 Act. The 2025 amendment therefore materially revised the blood testing stream, including persons and employment categories in scope and who may perform or authorise procedures.

Validation and transitional provisions:

The Act contains transitional clauses taking forensic material obtained under the repealed Act into the new framework (Schedule 1, Part 4, cls 6-10). The validation clause (Sched 1 cl 10) provides that contraventions of particular sections of the repealed Act will be taken not to be contraventions for admissibility purposes.

Other iterative adjustments:

The provisions list indicates numerous technical amendments to definitions (e.g. gun shot residue procedure inserted by 2016 amendment), alteration to suspects procedure language in 2015, administrative changes to s 41(2) in 2016 and 2017, and the insertion of s 48A in 2015 which limits admissibility of evidence related to blood testing for communicable diseases (s 48A was inserted by 11/2015 s 10). The Provisions amended table in the legislative history shows amendments by year and clause for quick cross‑reference.

Taken together, the amendment history shows two thematic strands: (1) expansion and technical tuning of the DNA database and inter‑jurisdictional exchange, and (2) the creation and refinement of a blood‑testing stream for communicable disease exposure of emergency and prescribed workers. The 2025 amendment notably substituted the s 20B regime, and removed the statutory definition of "medical practitioner" in the Part 2 Division 4 context, indicating a shift in who may perform or authorise such procedures and which employment classes are prescribed.

Practitioners should refer to the schedule and the Provisions amended table to track which sections have been updated and to confirm whether particular definitions (for example "medical practitioner") have been changed for a specific provision, because the legislative history shows that definitions and procedural rules have been altered multiple times.

The Act and the text provided do not list any reported case law or judicial interpretations. The legislative text contains procedural, admissibility and evidentiary mechanisms intended to shape litigation (for example, exclusionary rules under s 47, certificates under s 49, and inadmissibility protections in s 48A), but the document supplied does not include judicial decisions applying those provisions.

What the statute provides that will be implicated in litigation:

Admissibility doctrines: Section 47 creates a statutory exclusion rule (non‑compliance by police or other responsible persons with the Act renders evidence inadmissible unless the person does not object or the court admits it in the interests of justice). This provision invites judicial balancing of probative value against seriousness of contravention and prejudice to defendants (s 47(2)), so any litigation about police process would engage the statutory factors. Courts will have to apply the statutory test and weigh factors in specific cases.
Certificates and proof: Section 49 provides that certificates purporting to be signed by senior police officers, the Commissioner, or analysts are proof of the matters certified in the absence of contrary evidence. Litigated challenges are therefore likely to target "contrary evidence" to such certificates or to question whether the signatory qualified as a senior police officer/analyst for purposes of the section.
Evidence derived from blood testing: Section 48A excludes evidence of communicable disease testing against the person who submitted to the procedure except in narrow circumstances (offences against the Act itself or civil proceedings related to death or bodily injury). Litigation may arise over the scope of that inadmissibility and whether court proceedings fall within the exclusions.
Non‑compliance and destruction: Section 39 creates obligations to destroy volunteers and victims material on request unless a retention or assimilation order is made in time; failure to destroy when required renders evidence inadmissible under s 47(3). Litigation may therefore involve disputes about timing, whether material was "destroyed" (s 39(5) definition), or whether postponement was properly ordered (s 39(4)).

Administrative review and oversight:

Ombudsman audits (s 57) produce annual reports to the Attorney‑General and Parliament. Although the statutory text does not refer to judicial review, Ombudsman findings and audit reports can be used in litigation or in judicial review proceedings to show systemic non‑compliance or inform orders for procedural reform. The Act requires the Commissioner to supply information to the Ombudsman for audits (s 57(2)).

Absence of named cases:

The material provided contains no citations to judicial decisions that interpret or apply the provisions. Practitioners should search case law databases for judgments applying sections such as s 47 (admissibility), s 19 (senior police officer order), s 36-37 (retention and assimilation orders) and s 42 (unlawful storage) to obtain precedential guidance. The absence of cases in the Act text does not mean litigation has not occurred; it simply means no decisions are reproduced here.

Given the Act’s design, practitioners should expect future litigation to focus on statutory balancing tests for authorisation (s 19), admissibility challenges under s 47, the evidentiary effects of statutory certificates (s 49), and boundaries of involuntary sampling and communicable disease testing (Part 2 Div 4 and s 48A). Administrative oversight material arising from Ombudsman audits may also be deployed in litigation and in arguments about systemic compliance.

This Act contains multiple technically consequential provisions that create traps for practitioners and administrators if not followed exactly. The following are concrete, source‑grounded pitfalls.

Consent and withdrawal mechanics:

Withdrawal of consent invalidates authority and affects admissibility: If consent to a volunteers and victims procedure is withdrawn before completion, the procedure must stop unless a new authorisation is obtained; evidence obtained after withdrawal is not admissible (s 10(1)-(4)). Practically, this means police and forensic staff must monitor consent status continuously and cease activity when withdrawal is signalled or reasonably indicated by conduct (s 10(2)). Failure to cease risks inadmissible evidence.
Limited effect of failure to provide warnings or statements: In some cases the Act says procedural failures do not affect admissibility: e.g. failure to explain to a protected person that a volunteers and victims procedure will not be carried out if they object does not affect admissibility (s 11(3)(a)), and failure to give the written statement explaining destruction rights does not affect admissibility (s 12(2)). Practitioners must therefore track where procedural defects do and do not impact evidence: the statute treats some procedural defaults as non‑jurisdictional.

Volunteers indices and storage conditions:

Specific consent required for volunteers indices: DNA profiles from volunteers procedures cannot be stored on volunteers (limited) or volunteers (unlimited) indices without the relevant person's consent and completion of the Attorney‑General‑approved statement and, where oral, an audio/audiovisual record (s 43(1)-(6)). Police must ensure forms and recording comply; failure can produce criminal exposure (s 42) and admissibility consequences.
Comparison prohibitions: A person accessing the database must respect conditions placed on profiles stored on the volunteers (limited) index, including prohibitions on comparing that profile with specified other indices (s 45(3)(a)). Administrative access controls must be precise; accidental matching or improper comparisons may breach the Act and carry penalties.

Destruction timelines and postponement:

Tight statutory timelines: The Commissioner must destroy relevant forensic material obtained by volunteers and victims procedures within 21 days after receiving a written request for destruction, unless a retention order is in place (s 39(1)). If, within 14 days of such a request, an application for retention or assimilation is made, destruction may be postponed until determination (s 39(4)). The timing windows are short and operationally demanding; agencies must have a fast‑moving internal process to decide whether to seek a retention order within 14 days to avoid triggering destruction.
Definition of destroyed: Forensic material is taken to be destroyed if it is not possible to identify the person from whom the material was obtained (s 39(5)). Operational destruction practices must therefore ensure unlinkability, not just physical destruction of samples.

Use of samples and hair DNA:

Hair samples require specific request for DNA profiling: Section 34 states hair samples taken in the course of a forensic procedure must not be used to obtain a DNA profile unless the person specifically requested that outcome. Practitioners must record and retain evidence of a specific request before using hair for DNA profiling.

Communicable disease testing limitations:

Part 2 Div 4 material is limited to disease testing and must be destroyed: Forensic material obtained under Part 2 Div 4 must not be used for purposes other than testing for communicable diseases (s 34A) and must be destroyed as soon as reasonably practicable after testing (s 39A). The results and any statements related to such testing are inadmissible in criminal proceedings against the person (s 48A). Using that material or results for other investigations may be an evidence and criminal law trap.

Audiovisual and fees:

Copy fees and record provision: A person may obtain a copy of an audiovisual recording made under s 26 for a fee fixed by regulation (s 26(3)). Similarly, audio/audiovisual records of consent under s 43(5) must be given to the person subject to payment of a fee (s 43(6)). Agencies must ensure fee schedules and supply mechanisms are in place; failure to comply with cost/production rules can result in procedural disputes.

Database storage offences and backup exceptions:

Offence for external storage: Storing DNA profiles on any database other than the DNA database system is an offence unless anonymised or in specified exceptions (s 42(1)). The Act does allow temporary storage in connection with administration and backup copies as directed by the Commissioner (s 42(1)(ba)-(c)). Commercial labs and research bodies must ensure they do not store identifiable DNA profiles outside authorised systems.

Access control and comparison limits:

Access only for permitted purposes and with compliance to index limitations: Persons authorised may access the DNA database system only for enumerated purposes (s 45(2)), and must not compare volunteers (limited) profiles with other indexes prohibited by the consent conditions (s 45(3)). Administrative systems must enforce these limitations at the point of query; human error can create criminal liability.

Evidence admissibility traps:

Non‑compliance by police or responsible persons may render evidence inadmissible: s 47 creates a two‑step test where evidence is inadmissible unless the person does not object or the court admits it in the interests of justice. Courts must consider probative value and seriousness of contravention (s 47(2)). Practitioners should treat procedural compliance as essential to preserve evidence.

Inter‑jurisdictional registration and enforcement:

Orders from corresponding laws can be registered and enforced as if orders of this Act (s 56(2)-(3)). Practitioners must check whether an order originated in another jurisdiction and whether registration procedures were followed.

State Records exclusion:

State Records Act 1997 does not apply to forensic material or the DNA database system (s 52). This is a records‑management gotcha for public archivists and legal teams: standard State Records retention, disposal or access frameworks do not apply; governance is instead statutory under this Act and its regulations.

Finally, the Act puts substantial discretion in senior police officers (orders, retention, assimilation) and in the Minister and Commissioner via regulation and arrangements. Practitioners should watch for administrative policy documents and regulations under s 58 that can alter operational detail (fees, prescribed tests and employment classes, delegated authorities); those subordinate instruments will contain practicality that directly affects compliance.

This section sets out a practical, sequential checklist and process points drawn from the Act to guide police, forensic laboratories, medical providers, and legal advisers in complying with statutory requirements. Citations indicate the controlling sections.

Pre‑procedure decision framework:

Identify which Part/Division applies: volunteer/victim (Part 2 Div 1, s 7), suspect (Part 2 Div 2, s 14), offender (Part 2 Div 3, s 20), or blood/communicable disease stream (Part 2 Div 4, ss 20A-20B). Establish whether the person is a protected person and who the relevant person is (s 6; s 3(1) definitions).
If consent is required and expected, obtain consent in the prescribed manner: express oral or written consent or unequivocal indication (s 8). For volunteers indices, complete the Attorney‑General‑approved written statement explaining options and conditions (s 43(2)(a)(i)), read it to the person, and give a copy (s 43(2)(b)-(c)).
For protected persons, ensure the consent comes from the correct closest available next of kin or guardian and document the order of priority relied on (s 6; s 3(1) definitions).

Authorisation and recordkeeping: 4. If a senior police officer authorisation or order is required (s 9 for protected persons, s 19 for suspects procedures), prepare a written application that states the nature of the suspected offence, grounds for suspicion, and grounds for suspecting the procedure could produce material of value (s 15(2)(a)-(c)). Provide a copy to the respondent unless s 18 applies (urgent applications). 5. Conduct hearings in conformity with s 16 and s 17: allow legal representation, appropriate representative for protected persons (s 17(1)-(3)), and provide telephone/electronic hearing opportunities where used (s 17(4)). Record the hearing and make a written record of the order and reasons and give a copy to the respondent (s 19(3)-(4)). 6. For urgent applications under s 18, ensure the senior police officer properly documents that the respondent cannot be located and that probative value may be lost if the procedure is not conducted.

Procedural safeguards during the procedure: 7. Observe humane conduct and cultural sensitivity requirements; avoid unnecessary physical harm, humiliation or embarrassment (s 21(1)). Limit the presence of persons to those necessary (s 21(2)). Respect sex‑of‑operator guidance for intimate procedures where reasonably practicable (s 21(3)). 8. Confirm the person’s language needs and, if required, obtain an interpreter and allow the interpreter to be present at the procedure (s 22). 9. Ensure person carrying out the procedure is qualified as required by regulation or is a medical practitioner if the regulation requires (s 24). For intrusive procedures, allow the person a reasonable opportunity to arrange, at their expense, a medical practitioner witness (s 25(1)). For protected persons, ensure an appropriate representative is present (s 25(2)). 10. For intrusive suspects procedures, make an audiovisual recording (s 26(1)(a)); for intrusive volunteers and victims procedures, record if the person requests (s 26(1)(b)). Ensure arrangements to allow playback at a reasonable time and place (s 26(2)) and availability of a copy for a regulated fee (s 26(3)).

Sample handling, set‑aside and testing: 11. For suspects and offenders procedures, ensure a portion of material sufficient for analysis is set aside for the person as soon as practicable after analysis and is protected from degradation until received by the person (s 33(1)(a)-(b)). Provide reasonable assistance if the person wants to have the material analysed (s 33(1)(c)). Note that exceptions apply when material cannot practicably be divided (s 33(2)). 12. Hair samples must not be used for DNA profiling unless the person specifically requests such profiling (s 34). Ensure written documentation of the request is retained.

Database storage and consent administration: 13. If storing a DNA profile on volunteers indices, ensure specific consent has been obtained and documented in the Attorney‑General‑approved form and that audio/audiovisual records of non‑written consent are preserved and copies provided subject to fee (s 43(1)-(6)). If a condition prohibits comparisons with specified indices, ensure that condition is recorded and enforced by database access controls (s 43(2)(a)(i), s 45(3)(a)). 14. If an assimilation order has been made in relation to volunteers material, transfer the profile to the suspects/offenders index or store as permitted (s 44). Maintain records of transfers and the underlying assimilation order.

Retention, destruction and applications: 15. If a relevant person requests destruction of volunteers/victims material, comply within 21 days unless a retention order has been made (s 39(1)). Ensure the request is in writing (s 39(2)). If considering a retention or assimilation order apply in writing as a police officer specifying grounds (s 38(1)-(2)); if respondent located provide copy (s 38(2)). 16. To postpone destruction, ensure an application for retention or assimilation is lodged within 14 days of the destruction request (s 39(4)).

Confidentiality, publication and authorised disclosure: 17. Ensure all staff and contractors with access to forensic or database information are trained on permitted disclosures in s 50(1). Obtain written consents where disclosure is to be made to a person (s 50(1)(o)) and implement strict logging of any disclosures for audit. 18. Avoid publishing the name of a person suspected of a serious offence unless the person consents or has been charged (s 51). Maintain a publication clearance process.

Record keeping, audits and oversight: 19. Prepare to support the annual Ombudsman audit by maintaining comprehensive records of applications, orders, consents, audiovisual recordings, sample set‑aside, retention/destruction actions and database transactions (s 57). The Commissioner must provide information to the Ombudsman (s 57(2)). 20. Use s 49 certificates where appropriate: ensure described compliance steps are recorded to support a certificate "in the absence of evidence to the contrary" in proceedings.

Operational and policy points: 21. Implement access‑control software to enforce index comparison restrictions and to log comparisons (s 45(3)-(4)). Ensure backups and any temporary administrative databases are authorised under s 42(1)(ba)-(c). 22. Revise health sector and emergency services protocols to reflect Part 2 Div 4 authorisation and destruction obligations (ss 20A-20B; s 34A; s 39A), including timeframes for requests by exposed staff and the process by which the authorising officer must make a written record and provide a copy to the person (s 20B(5)). 23. Ensure forms and processes for attorney‑general approved statements and for the approval of audio recordings exist and are integrated into arrest/processing workflows (s 12(1); s 43(2)(a)).

Compliance staff and training: 24. Train police decision‑makers (including senior police officers) on the statutory balancing test for orders (s 19(1)-(2)), the narrow timeframe rules for volunteers destruction and retention, and record production obligations. Train forensic staff on sample handling and the specific prohibition on secondary use for Part 2 Div 4 material (s 34A). 25. Devise Standard Operating Procedures that mirror statutory steps (consent document, interpreter, witness, audiovisual recording, set‑aside sample, chain‑of‑custody, database upload with consent metadata, destruction or retention actions with order references).

Regulatory watch and fees: 26. Monitor regulations made under s 58 for fees, prescribed tests, prescribed employment classes and any ministerial/Commissioner discretions that affect operational compliance. Ensure budgets account for fees tied to provision of audiovisual copies or other services (s 26(3); s 43(6); s 58(2)(a)).

Legal review and audit preparedness: 27. Regularly review practices against Ombudsman audit findings and maintain readiness to produce evidence certificates and contemporaneous records to defend admissibility in court (s 49). Where non‑compliance occurs, assess admissibility risk under s 47 and consider remedial administrative measures promptly.

Following this checklist will reduce the risk of procedural errors that lead to evidence exclusion, regulatory fines or criminal exposure under the Act. Agencies should document decisions at each step, ensure forms and recordings are signed and time‑stamped, and centralise records for Ombudsman audits.

Criminal Law (Forensic Procedures) Act 2007

Plain English Summary

Deep Dive

What it does

Current sections

Criminal Law (Forensic Procedures) Act 2007

Source text: opening excerpt

1 Criminal Law (Forensic Procedures) Act 2007

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply