Crimes Act 1914

No. 12, 1914

Compilation No. 136

Compilation date:                              17 February 2021

Includes amendments up to:            Act No. 3, 2021

Registered:                                         26 February 2021

This compilation is in 2 volumes

Volume 1:       sections 1–23W

Volume 2:       sections 23WA–91

                        Schedule

                        Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Crimes Act 1914 that shows the text of the law as amended and in force on 17 February 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  

Contents

Part ID—Forensic procedures                                                                                       1

Division 1—Explanation of expressions used                                                  3

23WA.................... Definitions.......................................................................... 3

23WB.................... Interview friends............................................................... 13

Division 2—Authority and time limits for forensic procedures on suspects: summary of rules               15

23WC.................... How forensic procedures may be authorised in different circumstances  15

23WCA................. Time limits for carrying out forensic procedures.............. 16

Division 3—Forensic procedures on suspect by consent                         19

23WD.................... Forensic procedure may be carried out with informed consent of suspect               19

23WE.................... People who cannot consent to forensic procedures........... 19

23WF.................... Informed consent to forensic procedures—general........... 20

23WG.................... Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders    20

23WH.................... Constable may request suspect to consent to forensic procedure             22

23WI..................... Matters to be considered by constable before requesting consent to forensic procedure          22

23WJ..................... Matters that suspect must be informed of before giving consent              24

23WK.................... Withdrawal of consent...................................................... 27

23WL.................... Recording of giving of information and suspect’s responses.. 28

23WLA................. Time for carrying out forensic procedure—suspect not in custody          28

Division 4—Non‑intimate forensic procedures on suspect by order of senior police officer     30

23WM................... Non‑intimate forensic procedure may be carried out by order of senior police officer             30

23WN.................... Circumstances in which senior police officer may order non‑intimate forensic procedures     31

23WO.................... Matters to be considered by senior police officer before ordering forensic procedure             31

23WP.................... Record of senior police officer’s order............................. 32

Division 5—Forensic procedures on suspect by order of a magistrate 33

Subdivision A—General                                                                                         33

23WQ.................... Forensic procedure may be carried out by order of magistrate 33

23WR.................... Circumstances in which magistrate may order forensic procedure           33

Subdivision B—Final orders                                                                                 34

23WS.................... Final order for carrying out of forensic procedure............ 34

23WT.................... Matters to be considered by magistrate before ordering forensic procedure             34

23WU.................... Application for order........................................................ 36

23WV.................... Securing the presence of suspect at hearing—suspect in custody            36

23WW................... Securing the presence of suspect at hearing—suspect not in custody      37

23WX.................... Procedure at hearing of application for order.................... 37

23WY.................... Making of order................................................................ 38

Subdivision C—Interim orders                                                                             39

23XA.................... Interim order for carrying out of a forensic procedure...... 39

23XB..................... Application for interim order............................................ 40

23XC..................... Procedure at hearing of application for interim order........ 41

23XD.................... Making of interim order.................................................... 41

23XE..................... Records of application and interim order.......................... 42

23XF..................... Suspect may be prevented from destroying or contaminating evidence    43

23XG.................... Results of forensic procedure carried out under interim order  43

Subdivision D—Time limits for forensic procedures ordered by magistrates               44

23XGA................. Application....................................................................... 44

23XGB.................. Time for carrying out forensic procedure—suspect not in custody          44

23XGC.................. Arrest of suspect not in custody....................................... 45

23XGD................. Time for carrying out forensic procedure—suspect in custody                46

Subdivision E—Reports of proceedings under Division                                47

23XH.................... Restrictions on publication................................................ 47

Division 6—Carrying out forensic procedures on suspects                   48

Subdivision A—General provisions                                                                    48

23XI...................... General rules for carrying out forensic procedures........... 48

23XIA................... No questioning during forensic procedure........................ 48

23XIB................... Suspect must be cautioned before forensic procedure starts 48

23XJ...................... Use of force in carrying out forensic procedures.............. 49

23XK..................... Forensic procedures not to be carried out in cruel, inhuman or degrading manner   49

23XL..................... Taking of hair samples...................................................... 49

Subdivision B—Persons involved in forensic procedures                             49

23XM.................... Persons who may carry out forensic procedures.............. 49

Subdivision C—Further provisions about who may carry out forensic procedures     54

23XN.................... Certain forensic procedures generally to be carried out by person of same sex as suspect       54

23XO.................... Person may get help to carry out forensic procedures....... 55

Subdivision D—Presence of other people while forensic procedure is carried out       56

23XP..................... Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures       56

23XQ.................... Presence of interview friend or legal representative—children and incapable persons             56

23XR..................... Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders    57

23XS..................... Presence of constables...................................................... 57

23XSA.................. Presence of prison officers............................................... 58

Subdivision E—Recording of forensic procedure                                           58

23XT..................... Recording of forensic procedure....................................... 58

Subdivision F—Procedure after forensic procedure is carried out            59

23XU.................... Samples—sufficient material to share............................... 59

23XUA................. Samples—insufficient material to share............................ 60

23XV.................... Photographs...................................................................... 61

23XW.................... Results of analysis............................................................ 61

23XWA................. Preventing the carrying out of forensic procedure............ 62

Division 6A—Carrying out of certain forensic procedures after conviction of serious and prescribed offenders                                                                                                  63

23XWB................. Forensic procedures to which Division applies................ 63

23XWC................. Non‑intimate forensic procedures authorised to be carried out on offenders            63

23XWD................. Intimate forensic procedures authorised to be carried out on serious offenders       64

23XWE................. Application of Division 6................................................. 64

23XWF................. Scope of authorisation...................................................... 65

23XWG................. Informed consent to forensic procedures.......................... 65

23XWH................. Constable may request offender to consent to forensic procedure            66

23XWI.................. Matters to be considered by constable before requesting consent to forensic procedure          66

23XWJ.................. Matters that offender must be informed of before giving consent            66

23XWK................. Circumstances in which constable may order non‑intimate forensic procedure        68

23XWL................. Matters to be considered by constable.............................. 68

23XWM................ Recording of giving of information and consent............... 68

23XWN................. Record of constable’s order.............................................. 69

23XWNA.............. Circumstances in which judge or magistrate may order forensic procedure             69

23XWO................. Judge or magistrate order for carrying out forensic procedure on offender              69

23XWOA.............. Securing the presence of offender at hearing—offender in custody         71

23XWOB.............. Securing the presence of offender at hearing—offender not in custody   71

23XWP................. Carrying out forensic procedure following conviction...... 73

Division 6B—Carrying out of forensic procedures on volunteers and certain other persons  74

23XWQ................. Carrying out of forensic procedures on volunteers........... 74

23XWR................. Informed consent of volunteer or parent or guardian of volunteer           75

23XWS................. Recording of giving of information and consent............... 77

23XWT................. Withdrawal of consent...................................................... 78

23XWU................. Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person............................................................................... 79

23XWV................. Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent................................................ 81

Division 7—Admissibility of evidence                                                                83

Subdivision A—Forensic evidence                                                                       83

23XX.................... Inadmissibility of evidence from improper forensic procedures etc.        83

23XY.................... Inadmissibility of evidence where forensic material required to be destroyed          85

Subdivision B—Other evidence                                                                            85

23XZ..................... Admissibility of evidence relating to consent to forensic procedure         85

23YA.................... Admissibility of evidence relating to carrying out of forensic procedure 86

23YB..................... Obstructing the carrying out of forensic procedure........... 86

Subdivision C—Application                                                                                  87

23YBA.................. Division does not apply to a proceeding in a foreign country or an international tribunal        87

Division 8—Destruction of forensic material                                                88

23YBB.................. Application....................................................................... 88

23YC..................... Destruction of forensic material where interim order disallowed             88

23YD.................... Destruction of forensic material after 12 months.............. 88

23YDAA.............. Destruction of forensic material taken from offender after conviction quashed        90

23YDAB............... Destruction of forensic material where related evidence is inadmissible  90

Division 8A—Commonwealth and State/Territory DNA database systems       91

23YDAC............... Definitions........................................................................ 91

23YDACA............ Integration of Commonwealth DNA database system and State/Territory DNA database systems         94

23YDAD.............. Supply of forensic material for purposes of DNA database 95

23YDAE............... Use of information on Commonwealth DNA database system or NCIDD             96

23YDAF............... Permissible matching of DNA profiles............................. 97

23YDAG.............. Recording, retention and removal of identifying information on Commonwealth DNA database system.......................................................................................... 99

Division 9—General provisions relating to operation of this Part  101

23YDA................. Interpreters...................................................................... 101

23YE..................... Powers etc. of legal representatives and interview friends 102

23YF..................... Obligation of investigating constables relating to tape recordings            102

23YG.................... Material required to be made available to suspect, offender or volunteer 104

23YH.................... No charge to be made for giving material etc. to suspects, offenders and volunteers               104

23YI...................... Proof of belief or suspicion............................................ 105

23YJ...................... Proof of impracticability................................................. 105

23YJA................... Proof that time should be disregarded............................. 105

23YK..................... Proof of voluntary waiver of certain rights..................... 105

23YKA.................. Application of sections 23YI to 23YK........................... 105

23YL..................... Liability for forensic procedures..................................... 106

23YM.................... Experts not obliged to carry out forensic procedures...... 106

23YN.................... Retention of electronic recordings................................... 106

23YO.................... Disclosure of information............................................... 106

23YP..................... Taking, retention and use of forensic material................. 109

23YPA.................. Analysis of forensic material.......................................... 110

23YQ.................... Commissioner may delegate functions and powers........ 110

Division 9A—Carrying out forensic procedures at the request of a foreign country or international tribunal                                                                                                   111

Subdivision A—Requests by foreign countries or international tribunals 111

23YQA................. Application of Subdivision............................................. 111

23YQB.................. Providing evidence and material resulting from the forensic procedure   111

Subdivision B—Requests by a foreign law enforcement agency               112

23YQC.................. Application of Subdivision............................................. 112

23YQD................. Providing forensic material etc. to a foreign law enforcement agency      112

Division 10—Operation of this Part and effect on other laws            114

23YQE.................. Part does not apply to persons under 10......................... 114

23YR..................... Relationship with Part IAA............................................ 114

23YS..................... Relationship with Part IC................................................ 114

23YU.................... Application of other laws................................................ 115

Division 11—Interjurisdictional enforcement                                             116

23YUA................. Definitions...................................................................... 116

23YUB.................. Registration of orders..................................................... 116

23YUC.................. Carrying out of registered orders.................................... 117

23YUD................. Database information...................................................... 118

23YUDA.............. Arrangements with prisons or other places of detention. 119

Division 11A—Operation of this Part in relation to certain incidents 120

23YUE.................. Definitions...................................................................... 120

23YUF.................. Application of this Division............................................ 120

23YUG................. Use of information on DNA database systems............... 121

23YUH................. Permissible matching of DNA profiles........................... 122

23YUI................... Disclosure of information............................................... 122

23YUJ................... This Division does not restrict operation of this Part...... 123

Division 11B—Concurrent operation of State and Territory laws 124

23YUL.................. Concurrent operation of State and Territory laws........... 124

Part IE—Forfeiture of child abuse material                                                     125

Division 1—Things this Part applies to                                                           125

23ZA..................... Application..................................................................... 125

Division 2—Forfeiture by operation of law after notice is given      126

23ZB..................... Forfeiture of material by operation of law....................... 126

23ZC..................... Providing copies of innocuous parts of material to be forfeited               128

Division 3—Forfeiture by court order on application                            130

23ZD..................... Forfeiture of material by court order on application........ 130

Division 4—Provisions relating to forfeiture under this Part generally               133

23ZE...................... Effect of forfeiture under this Part.................................. 133

23ZF...................... Compensation for forfeiture of electronic equipment etc. 133

23ZG..................... Delegation by head of police force.................................. 134

Part IIA—Protection of public and other services                                        135

30J......................... Industrial disturbances, lock‑outs and strikes................. 135

30K........................ Obstructing or hindering the performance of services.... 136

Part III—Offences relating to the administration of justice                    138

Division 1—Preliminary                                                                                          138

31.......................... Judicial proceeding and tribunal definitions.................... 138

Division 2—Judges and magistrates                                                                 139

34.......................... Judge or magistrate acting oppressively or when interested 139

Division 3—Evidence and witnesses                                                                 141

35.......................... Giving false testimony.................................................... 141

36.......................... Fabricating evidence....................................................... 142

36A....................... Intimidation of witnesses etc........................................... 142

37.......................... Corruption of witnesses.................................................. 143

38.......................... Deceiving witnesses....................................................... 144

39.......................... Destroying evidence....................................................... 144

40.......................... Preventing witnesses from attending Court.................... 145

Division 4—Perverting the course of justice                                                146

41.......................... Conspiracy to bring false accusation............................... 146

42.......................... Conspiracy to defeat justice............................................ 147

43.......................... Attempting to pervert justice........................................... 149

44.......................... Compounding offences................................................... 149

45.......................... Inserting advertisements without authority of court........ 150

Division 5—Escape from criminal detention                                                151

45A....................... Criminal detention definitions......................................... 151

46.......................... Aiding prisoner to escape............................................... 151

46A....................... Aiding prisoner to escape—conveying thing into prison etc. 152

47.......................... Escaping......................................................................... 153

47A....................... Rescuing a prisoner from criminal detention................... 153

47B........................ Person unlawfully at large.............................................. 153

47C........................ Permitting escape............................................................ 154

48.......................... Harbouring etc. an escapee............................................. 154

48A....................... Sentence ceases to run while escaped prisoner at large... 155

Division 6—Seized property                                                                                 156

49.......................... Removing property under seizure................................... 156

Part IV—Piracy                                                                                                                  157

51.......................... Interpretation................................................................... 157

52.......................... Piracy.............................................................................. 158

53.......................... Operating a pirate‑controlled ship or aircraft................... 158

54.......................... Seizure of pirate ships and aircraft etc............................. 159

55.......................... Written consent of Attorney‑General required................ 160

56.......................... Evidence of certain matters............................................. 160

Part VIIA—Offences relating to postal services                                             161

85E........................ Interpretation—definitions.............................................. 161

85F........................ Interpretation—expressions used in Australian Postal Corporation Act  162

85G....................... Forgery of postage stamps etc........................................ 162

85H....................... Special paper for postage stamps.................................... 163

85N....................... Wrongful delivery of postal article etc............................ 164

85Q....................... Forgery of postal messages etc....................................... 164

85R........................ Wrongful delivery of postal messages............................ 164

85T........................ Sending false postal messages........................................ 165

85U....................... Obstructing carriage of articles by post........................... 165

85V....................... Interference with property of Australia Post................... 165

85W....................... Causing controlled drugs or controlled plants to be carried by post         166

85Z........................ Articles carried by post to be taken to be Australia Post’s property         169

85ZA..................... Postage stamps to be valuable securities etc.................... 169

Part VIIC—Pardons, quashed convictions and spent convictions      170

Division 1—Interpretation and application of Part                                 170

85ZL...................... Interpretation of Part....................................................... 170

85ZM.................... Meaning of conviction and spent conviction................... 175

85ZN..................... Meaning of quash........................................................... 175

85ZP...................... Application of Part.......................................................... 176

85ZQ..................... Part binds the Crown...................................................... 176

Division 2—Pardons for persons wrongly convicted, and quashed convictions               177

85ZR..................... Pardons for persons wrongly convicted......................... 177

85ZS...................... Effect of pardons for persons wrongly convicted........... 177

85ZT...................... Quashed convictions....................................................... 178

85ZU..................... Effect of quashed convictions......................................... 179

Division 3—Spent convictions                                                                              180

85ZV..................... Spent convictions............................................................ 180

85ZW.................... Effect of right of non‑disclosure..................................... 181

Division 4—Convictions of further offences                                                182

85ZX..................... Convictions of further Commonwealth or Territory offences  182

85ZY..................... Convictions of further State or foreign offences............. 182

Division 5—Complaints to Information Commissioner                         184

85ZZ...................... Information Commissioner’s functions.......................... 184

85ZZA................... Complaints to the Information Commissioner................ 185

85ZZB................... Identity of respondent to complaint................................. 185

85ZZC................... Investigation of complaints............................................. 186

85ZZD................... Determinations of Information Commissioner................ 187

85ZZE................... Payment of compensation or expenses........................... 188

85ZZF................... Enforcement of determination or recommendation.......... 188

85ZZG................... Application of Privacy Act............................................. 189

Division 6—Exclusions                                                                                             190

Subdivision A—Exclusions relating to work with children (Divisions 2 and 3)              190

85ZZGA................ Object of Subdivision..................................................... 190

85ZZGB................ Exclusion: disclosing information to a person or body... 190

85ZZGC................ Exclusion: person or body taking information into account 190

85ZZGD................ Exclusion: person or body disclosing information.......... 191

85ZZGE................ Prescribed persons and bodies........................................ 191

85ZZGF................ Definitions...................................................................... 191

85ZZGG................ Reviews of operation of this Subdivision....................... 192

Subdivision AA—Exclusions relating to work with persons with disability (Divisions 2 and 3)                193

85ZZGH................ Object of Subdivision..................................................... 193

85ZZGI................. Exclusion: disclosing information to a person or body... 193

85ZZGJ................. Exclusion: person or body taking information into account 193

85ZZGK................ Exclusion: person or body disclosing information.......... 194

85ZZGL................ Prescribed persons and bodies........................................ 194

85ZZGM............... Definitions...................................................................... 195

85ZZGN................ Reviews of operation of this Subdivision....................... 196

Subdivision B—Exclusions (Division 3)                                                           196

85ZZH................... Exclusions...................................................................... 196

85ZZJ.................... Further exclusions—law enforcement agencies.............. 197

Subdivision C—Other matters                                                                            198

85ZZK................... Fair reporting: pardons and quashed convictions............ 198

85ZZL................... Criminal proceedings before the Federal Court of Australia 198

Part VIID—Collecting, using and disclosing personal information that may be relevant for integrity purposes                                                                                                                200

86B........................ Simplified outline of this Part......................................... 200

86C........................ Target entity may collect sensitive information for integrity purpose       200

86D....................... Target entity may use personal information for integrity purpose            201

86E........................ Disclosure of personal information to target entity for integrity purpose 201

86F........................ This Part does not limit other laws.................................. 202

86G....................... Guidelines on the operation of this Part.......................... 202

Part VIII—Miscellaneous                                                                                              203

87.......................... False certificates.............................................................. 203

89.......................... Trespassing on Commonwealth land.............................. 203

89A....................... Discharging firearms on or over Commonwealth land... 204

90.......................... Trespass by cattle or live stock....................................... 205

90A....................... Destroying etc. posters etc. relating to Commonwealth loans  205

90B........................ False statements in documents filed etc. under laws of a Territory           205

91.......................... Regulations..................................................................... 206

Schedule—Form of explanation under section 23V              207

Endnotes                                                                                                                                  208

Endnote 1—About the endnotes                                                                          208

Endnote 2—Abbreviation key                                                                              210

Endnote 3—Legislation history                                                                           211

Endnote 4—Amendment history                                                                         240

Part ID—Forensic procedures

  

Division 1—Explanation of expressions used

23WA  Definitions

             (1)  In this Part:

Aboriginal legal assistance organisation has the same meaning as in Part IC.

accredited laboratory means:

                     (a)  a forensic laboratory accredited by the National Association of Testing Authorities, Australia; or

                     (b)  a forensic laboratory that is of a kind prescribed by the regulations for the purposes of this paragraph.

adult means a person of or above 18 years of age.

AFP function means a function of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979.

appropriately qualified, in relation to carrying out a forensic procedure, means:

                     (a)  having suitable professional qualifications or experience to carry out the forensic procedure; or

                     (b)  qualified under the regulations to carry out the forensic procedure.

authorised applicant for an order for the carrying out of a forensic procedure means:

                     (a)  if the procedure will be carried out on a suspect—the constable in charge of a police station or the investigating constable in relation to a relevant offence; or

                     (b)  if the procedure will be carried out on an offender—the constable in charge of a police station, the investigating constable in relation to a relevant offence or the Director of Public Prosecutions.

authorising provision, in relation to a request by a foreign country or international tribunal, means whichever of the following provisions that refers to the request:

                     (a)  section 28B of the Mutual Assistance in Criminal Matters Act 1987;

                     (b)  section 76A of the International Criminal Court Act 2002;

                     (c)  section 32B of the International War Crimes Tribunals Act 1995.

child means a person who is at least 10 years of age but under 18 years of age.

Commissioner means the Commissioner of the Australian Federal Police and includes a constable or AFP appointee (within the meaning of the Australian Federal Police Act 1979) to whom the Commissioner has delegated the functions and powers conferred or imposed on the Commissioner under this Act.

Note:          See section 23YQ for the Commissioner’s power to delegate.

Commonwealth DNA database system is defined in section 23YDAC.

corresponding law is defined in section 23YUA.

crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002.

destroy is defined in subsection (5).

exercise a function includes perform a duty.

foreign law enforcement agency means:

                     (a)  a police force (however described) of a foreign country; or

                     (b)  any other authority or person responsible for the enforcement of the laws of the foreign country; or

                     (c)  any other authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC; or

                     (d)  any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.

foreign serious offence means:

                     (a)  a foreign serious offence (within the meaning of the Mutual Assistance in Criminal Matters Act 1987); or

                     (b)  a crime within the jurisdiction of the ICC; or

                     (c)  a War Crimes Tribunal offence.

forensic evidence means one or more of the following:

                     (a)  evidence of forensic material, or evidence consisting of forensic material, taken from a suspect or a volunteer by a forensic procedure;

                     (b)  evidence of any results of the analysis of the forensic material;

                     (c)  any other evidence obtained as a result of or in connection with the carrying out of the forensic procedure.

forensic material means:

                     (a)  samples; or

                     (b)  hand prints, finger prints, foot prints or toe prints; or

                     (c)  photographs or video recordings; or

                     (d)  casts or impressions;

taken from or of a person’s body by a forensic procedure.

forensic procedure means:

                     (a)  an intimate forensic procedure; or

                     (b)  a non‑intimate forensic procedure;

but does not include any intrusion into a person’s body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

function includes a power, authority or duty.

ICC has the same meaning as in the International Criminal Court Act 2002.

incapable person means an adult who:

                     (a)  is incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or

                     (b)  is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.

in custody is explained in subsection (2).

indictable offence means:

                     (a)  an indictable offence against a law of the Commonwealth; or

                     (b)  a State offence that has a federal aspect and that is an indictable offence against the law of that State.

inform is explained in subsection (4).

informed consent is explained in sections 23WF, 23WG, 23XWG and 23XWR.

international tribunal means:

                     (a)  the ICC; or

                     (b)  a War Crimes Tribunal.

interview friend is explained in section 23WB.

intimate forensic procedure means the following forensic procedures:

                     (a)  an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

                     (b)  the taking of a sample of blood (other than by a finger prick);

                     (d)  the taking of a sample of pubic hair;

                     (e)  the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

                      (f)  the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

                     (g)  the taking of a dental impression;

                     (h)  the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

investigating constable means:

                     (a)  in the case of a request by a foreign country, an international tribunal or a foreign law enforcement agency—the constable in charge of coordinating the response to the request; and

                     (b)  in any other case—the constable in charge of the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.

judge means a State or Territory judge.

legal representative of a suspect means a legal practitioner acting for the suspect.

member of the opposite sex of a person is defined in subsection (7).

member of the same sex as a person is defined in subsection (7).

National Criminal Investigation DNA Database or NCIDD is defined in section 23YDAC.

non‑intimate forensic procedure means the following forensic procedures:

                     (a)  an examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts, that requires touching of the body or removal of clothing;

                    (aa)  the taking of a sample of blood by a finger prick;

                   (ab)  the taking of a sample of saliva, or a sample by buccal swab;

                     (b)  the taking of a sample of hair other than pubic hair;

                     (c)  the taking of a sample from a nail or under a nail;

                     (d)  the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

                     (e)  the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

                      (f)  the taking of a hand print, finger print, foot print or toe print;

                     (g)  the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

offence does not include an offence against a law of a Territory other than the Australian Capital Territory.

Note:          Subsection 3(1) provides that Territory does not include the Northern Territory.

offender means:

                     (a)  a serious offender; or

                     (b)  a prescribed offender.

order means:

                     (a)  in relation to a suspect—an order of a magistrate under section 23WS or interim order of a magistrate under section 23XA; or

                     (b)  in relation to an offender—an order of a judge or magistrate under section 23XWO; or

                     (c)  in relation to a volunteer—an order of a magistrate under section 23XWU.

participating jurisdiction is defined in section 23YUA.

police station includes:

                     (a)  a police station of a State or Territory; and

                     (b)  a building occupied by the Australian Federal Police.

prescribed offence means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 2 or more years.

prescribed offender means a person who is under sentence for a prescribed offence.

Note:          For the meaning of under sentence, see subsection (8).

prison medical officer means, in relation to a prison or other place of detention, a person appointed or acting as medical officer for the prison or other place of detention.

recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 of New South Wales, or under the corresponding provisions of a law of another Australian jurisdiction.

relevant offence means:

                     (a)  in relation to a person who is a suspect:

                              (i)  the indictable offence in relation to which the person is a suspect; or

                             (ii)  any other indictable offence arising out of the same circumstances; or

                            (iii)  any other indictable offence in respect of which the evidence likely to be obtained as a result of a proposed forensic procedure carried out on the suspect is likely to have probative value; or

                     (b)  in relation to an offender—the offence for which the offender was convicted and to which an application for an order authorising a forensic procedure relates.

request, by a foreign country, international tribunal or foreign law enforcement agency, means:

                     (a)  in the case of a foreign country—a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987, by the country; or

                     (b)  in the case of an international tribunal:

                              (i)  a request referred to in section 76A of the International Criminal Court Act 2002, if the tribunal is the ICC; or

                             (ii)  a request referred to in section 32B of the International War Crimes Tribunals Act 1995, if the tribunal is a War Crimes Tribunal; or

                     (c)  in the case of a foreign law enforcement agency—a request, to which Subdivision B of Division 9A applies, by the agency.

responsible person, in relation to the Commonwealth DNA database system, means the person responsible for the care, control and management of the system.

sample has a meaning affected by subsection (3).

senior police officer means a constable of the rank of sergeant or higher.

serious offence means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 5 or more years.

serious offender means a person who is under sentence for a serious offence.

Note:          For the meaning of under sentence, see subsection (8).

suspect, in relation to an indictable offence, means:

                     (a)  a person whom a constable suspects on reasonable grounds has committed the indictable offence; or

                     (b)  a person charged with the indictable offence; or

                     (c)  a person who has been summonsed to appear before a court in relation to the indictable offence; or

                     (d)  a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has:

                              (i)  started investigating whether the person has committed an indictable offence; or

                             (ii)  started proceedings against the person for an indictable offence.

tape recording means audio recording, video recording or recording by other electronic means.

transgender person is defined in subsection (6).

volunteer is defined in section 23XWQ.

War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995.

War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995.

             (2)  In this Part, a person is in custody if he or she is in the lawful custody of a constable.

             (3)  In this Part, a sample taken from a person includes a sample taken from the person that consists of matter from another person’s body.

             (4)  In this Part, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.

Destroy forensic material or information

             (5)  For the purposes of this Part, a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.

Transgender persons

             (6)  In this Part, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

                     (a)  who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or

                     (b)  who has identified as a member of the opposite sex by living as a member of the opposite sex; or

                     (c)  who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex;

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

             (7)  In this Part (other than subsection (6)), a reference:

                     (a)  to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies; and

                     (b)  to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.

             (8)  For the purposes of the definitions of prescribed offender and serious offender, a person is under sentence in relation to a prescribed offence or a serious offence if the person:

                     (a)  is serving a sentence in a prison (including a gaol, lock‑up or other place of detention); or

                     (b)  is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20AB(1) as a sentence or order that may be passed or made by a court, under that section, in respect of a person convicted of an offence against the law of the Commonwealth; or

                     (c)  is released under a parole order made under subsection 19AL(1) or (2); or

                     (d)  is released on a licence granted under section 19AP; or

                     (e)  being a child or young person, is serving a sentence of a kind, or subject to an order of a kind, provided for in section 20C as a sentence or order that, under that section, may be imposed on the child or young person who in a State or Territory is convicted of an offence against the law of the Commonwealth; or

                      (f)  is subject to an order made under Division 9 of Part IB; or

                     (g)  is convicted and conditionally released as provided for in subsection 20(1), either:

                              (i)  in the case of paragraph 20(1)(a)—without sentence being passed; or

                             (ii)  in the case of paragraph 20(1)(b)—after sentence has been passed.

Requests by a foreign country, international tribunal or foreign law enforcement agency

             (9)  The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence.

23WB  Interview friends

             (1)  This section lists the people who may act as an interview friend of a suspect, offender or volunteer for the purposes of a provision of this Part referring to an interview friend. Different people may act as interview friends of a suspect, offender or volunteer for the purposes of different provisions of this Part.

             (2)  Where the suspect, offender or volunteer is a child or an incapable person, the following people may act as interview friends:

                     (a)  a parent, guardian or other person chosen by, or acceptable to, the suspect, offender or volunteer;

                     (b)  a legal practitioner acting for the suspect, offender or volunteer;

                     (c)  if the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located who is chosen by, or acceptable to, the suspect, offender or volunteer;

                     (d)  if there is no available person who is covered by paragraph (a), (b) or (c)—an independent person who is not a constable.

             (3)  Where the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the following people may act as interview friends:

                     (a)  a relative or other person chosen by the suspect, offender or volunteer;

                     (b)  a legal practitioner acting for the suspect, offender or volunteer;

                     (c)  if there is no available person who is covered by paragraph (a) or (b)—a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.

             (4)  A suspect, offender or volunteer who has a legal representative may also have an interview friend who is not the suspect’s, offender’s or volunteer’s legal representative.

Division 2—Authority and time limits for forensic procedures on suspects: summary of rules

23WC  How forensic procedures may be authorised in different circumstances

                   The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.

 

Authority for forensic procedures
	Suspect	Intimate forensic procedure	Non‑intimate forensic procedure
1	adult not in custody	with informed consent under Division 3 by order of a magistrate under Division 5	with informed consent under Division 3 by order of a magistrate under Division 5
2	adult in custody	with informed consent under Division 3 by order of a magistrate under Division 5	with informed consent under Division 3 by order of a senior police officer under Division 4 by order of a magistrate under Division 5
3	incapable person (whether or not in custody)	by order of a magistrate under Division 5	by order of a magistrate under Division 5
4	child at least 10 but under 18 (whether or not in custody)	by order of a magistrate under Division 5	by order of a magistrate under Division 5

23WCA  Time limits for carrying out forensic procedures

                   The following table sets out in general terms the time limits that apply to the carrying out of a forensic procedure depending on the status of the suspect and the source of the authority to carry out the procedure.

 

Time limits for forensic procedures
	Suspect’s status	Procedure with suspect’s consent (Division 3)	Procedure by order of a constable (Division 4)	Procedure by order of a magistrate (Division 5)
1	Child or incapable person not in custody	Not applicable	Not applicable	Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
2	Aboriginal person or Torres Strait Islander (not a child or incapable person) not in custody	Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23WLA(2) (see section 23WLA).	Not applicable	Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
3	Suspect (not covered by item 1 or 2) not in custody	Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23WLA(2) (see section 23WLA).	Not applicable	Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding “dead time” described in subsection 23XGB(2) (see section 23XGB).
4	Child or incapable person in custody	Not applicable	Not applicable	In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).
5	Aboriginal person or Torres Strait Islander (not a child or incapable person) in custody	Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)).	Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)).	In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).
6	Suspect (not covered by item 4 or 5) in custody	Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)).	Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)).	In addition to the detention period permitted under Part IC, suspect may be detained for up to 4 hours after magistrate’s order or suspect’s arrest, disregarding “dead time” described in subsection 23XGD(2) (see Subdivision D of Division 5).

Division 3—Forensic procedures on suspect by consent

23WD  Forensic procedure may be carried out with informed consent of suspect

             (1)  A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

             (2)  This Division does not authorise the carrying out of a forensic procedure on a suspect who is:

                     (a)  a child; or

                     (b)  an incapable person.

             (3)  This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.

Note:          If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.

             (4)  Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, with the informed consent of the suspect, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delay associated with carrying out the forensic procedure, operates to extend the investigation period provided for by Part IC.

Note:          By contrast, the carrying out of a forensic procedure in accordance with a magistrate’s order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.

23WE  People who cannot consent to forensic procedures

             (1)  A child cannot consent to a forensic procedure.

             (2)  An incapable person cannot consent to a forensic procedure.

23WF  Informed consent to forensic procedures—general

             (1)  This section applies where:

                     (a)  a constable intends to ask a suspect to consent to a forensic procedure; and

                     (b)  the constable does not believe on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.

             (2)  A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:

                     (a)  asks the suspect to consent to the forensic procedure under section 23WH; and

                     (b)  informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and

                     (d)  gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect’s choice and, subject to subsection (3), to do so in private.

             (3)  If the suspect is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with the legal practitioner in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

23WG  Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders

             (1)  This section applies where:

                     (a)  a constable intends to ask a suspect to consent to a forensic procedure; and

                     (b)  the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.

             (2)  A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:

                     (a)  asks the suspect to consent to the forensic procedure under section 23WH; and

                     (b)  informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and

                     (c)  complies with the rest of this section.

             (3)  The constable must not ask the suspect to consent to the forensic procedure unless:

                     (a)  an interview friend is present; or

                     (b)  the suspect has expressly and voluntarily waived his or her right to have an interview friend present; or

                     (c)  the constable is a senior police officer and he or she believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the request to consent by comparison with members of the Australian community generally.

Note:          Section 23YK relates to proving a waiver under paragraph (3)(b) of this section.

             (4)  Before asking the suspect to consent to a forensic procedure, the constable must:

                     (a)  inform the suspect that a representative of an Aboriginal legal assistance organisation will be notified that the suspect is to be asked to consent to a forensic procedure; and

                     (b)  notify such a representative that the suspect is to be asked to consent to a forensic procedure.

             (5)  The constable is not required to comply with subsection (4) if:

                     (a)  he or she is aware that the suspect has arranged for a legal practitioner to be present while the suspect is asked to consent to the forensic procedure; or

                     (b)  paragraph (3)(b) or (c) applies.

             (6)  After asking a suspect covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect’s choice and, subject to subsection (8), to do so in private.

             (7)  After asking a suspect not covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must allow the suspect to communicate with the interview friend (if any), and with the suspect’s legal representative (if any), and, subject to subsection (8), to do so in private.

             (8)  If a suspect covered by subsection (6) or (7) is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with a legal practitioner, or the suspect’s interview friend or legal representative, in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

             (9)  An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the constable and the suspect if the interview friend unreasonably interferes with or obstructs the constable in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 23WJ.

23WH  Constable may request suspect to consent to forensic procedure

                   A constable may ask a suspect to undergo a forensic procedure if the constable is satisfied as required by section 23WI.

23WI  Matters to be considered by constable before requesting consent to forensic procedure

             (1)  The constable must be satisfied on the balance of probabilities that:

                     (a)  the person on whom the procedure is proposed to be carried out is a suspect; and

                     (b)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                     (c)  the request for consent to the forensic procedure is justified in all the circumstances; and

                     (d)  the person on whom the forensic procedure is proposed to be carried out is not a child or an incapable person.

             (2)  In determining whether a request is justified in all the circumstances, the constable must:

                     (a)  if the forensic procedure has been requested by a foreign law enforcement agency—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and

                     (b)  in any other case—balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the constable must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect’s alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);

                     (e)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                      (f)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.

23WJ  Matters that suspect must be informed of before giving consent

             (1)  The constable must inform the suspect of the following matters:

                     (a)  that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by audio tape, videotape or other electronic means, or in writing, and that the suspect has a right to a copy of that record in a form provided by section 23YF;

                     (b)  the purpose for which the forensic procedure is required;

                     (c)  the offence in relation to which the constable wants the forensic procedure carried out;

                     (d)  the way in which the forensic procedure is to be carried out;

                     (e)  that the forensic procedure may produce evidence against the suspect that might be used in a court of law;

                      (f)  that the forensic procedure will be carried out by an appropriately qualified person;

                     (g)  if relevant, the matters specified in subsection (2);

                     (h)  if the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—that the suspect’s interview friend may be present while the forensic procedure is carried out;

                      (i)  that the suspect may refuse to consent to the carrying out of the forensic procedure;

                    (ia)  the effect of section 23XZ;

                    (ib)  if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal)—the following:

                              (i)  the name of the foreign law enforcement agency that has made the request;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;

                            (iii)  that the forensic evidence may be used in proceedings against the suspect in the foreign country;

                            (iv)  that the retention of the forensic evidence will be governed by the laws of the foreign country;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;

                            (vi)  the content of those undertakings;

                    (ic)  if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following:

                              (i)  the name of the international tribunal for which the request was made;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the agency;

                            (iii)  that the forensic evidence may be used in proceedings against the suspect in the international tribunal;

                            (iv)  that the retention of the forensic evidence will be governed by the rules of the international tribunal;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the agency;

                            (vi)  the content of those undertakings;

                      (j)  the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable);

                     (k)  that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and the rules that will apply to its disclosure and use under this Part.

Suspect’s right to have medical practitioner or dentist present during intimate forensic procedures

             (2)  The constable must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of forensic procedure) of his or her choice be present while the forensic procedure is carried out (unless the forensic procedure is a non‑intimate forensic procedure).

Failure to consent to non‑intimate forensic procedure—suspect in custody

             (3)  If the suspect is in custody and the forensic procedure is a non‑intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent:

                     (a)  a senior police officer may order the carrying out of the forensic procedure under Division 4 if he or she is satisfied of the matters referred to in subsection 23WO(1); or

                     (b)  an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

Failure to consent to intimate forensic procedure—suspect in custody

             (4)  If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

Exception—requests by foreign law enforcement agency

          (4A)  Subsections (3) and (4) do not apply if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.

Failure to consent to forensic procedure—suspect not in custody

             (5)  If the suspect is not in custody and is not being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

Failure to consent to forensic procedure—procedure requested by foreign law enforcement agency

             (6)  The constable must inform the suspect (whether or not the suspect is in custody) that if:

                     (a)  the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and

                     (b)  the suspect does not consent;

the Attorney‑General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.

23WK  Withdrawal of consent

                   If a person expressly withdraws consent to the carrying out of a forensic procedure under this Part (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct) before or during the carrying out of the forensic procedure, then:

                     (a)  the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and

                     (b)  the forensic procedure is not to proceed except by order of a constable under Division 4 or a magistrate under Division 5.

23WL  Recording of giving of information and suspect’s responses

             (1)  The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the suspect’s responses (if any) are tape recorded.

             (2)  If tape recording the giving of the information and the suspect’s responses (if any) is not practicable, the constable must ensure that a written record of the giving of the information and the suspect’s responses (if any) is made, and that a copy of the record is made available to the suspect.

Note 1:       Division 9 contains provisions about making copies of material (including copies of tapes) available to the suspect.

Note 2:       If a foreign law enforcement agency requests that a forensic procedure be carried out on a suspect, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).

23WLA  Time for carrying out forensic procedure—suspect not in custody

             (1)  If a suspect who is not in custody:

                     (a)  consents to a forensic procedure; and

                     (b)  presents himself or herself to the investigating constable to undergo the procedure;

the procedure must be carried out as quickly as reasonably possible but in any case within the following period:

                     (c)  if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;

                     (d)  in any other case—4 hours after the suspect so presents himself or herself.

             (2)  In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:

                     (a)  the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;

                     (b)  any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;

                     (c)  any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;

                     (d)  any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;

                     (e)  any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;

                      (f)  any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;

                     (g)  any time during which carrying out the procedure is suspended or delayed at the request of the suspect.

Division 4—Non‑intimate forensic procedures on suspect by order of senior police officer

23WM  Non‑intimate forensic procedure may be carried out by order of senior police officer

             (1)  A person is authorised to carry out a non‑intimate forensic procedure on a suspect by order of a senior police officer under section 23WN. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

             (2)  This Division does not authorise the carrying out of a forensic procedure on a suspect who is:

                     (a)  a child; or

                     (b)  an incapable person.

          (2A)  This Division does not authorise the carrying out of a forensic procedure on a suspect if the procedure has been requested by:

                     (a)  a foreign country or international tribunal; or

                     (b)  a foreign law enforcement agency.

             (3)  This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.

Note:          If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.

             (4)  Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, in accordance with a constable’s order under section 23WN, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate to extend the investigation period provided for by Part IC.

Note:          By contrast, the carrying out of a forensic procedure in accordance with a magistrate’s order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.

23WN  Circumstances in which senior police officer may order non‑intimate forensic procedures

                   A senior police officer may order the carrying out of a non‑intimate forensic procedure on a suspect who is in custody if:

                     (a)  the suspect has been asked under Division 3 to consent to the carrying out of the forensic procedure; and

                     (b)  the suspect has not consented; and

                     (c)  the senior police officer is satisfied as required by section 23WO.

23WO  Matters to be considered by senior police officer before ordering forensic procedure

             (1)  The senior police officer must be satisfied on the balance of probabilities that:

                     (a)  the suspect is in the lawful custody of a constable; and

                     (b)  there are reasonable grounds to believe that the suspect committed a relevant offence; and

                     (c)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                     (d)  the carrying out of the forensic procedure without consent is justified in all the circumstances.

             (2)  In determining whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the senior police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the senior police officer must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect’s alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the senior police officer or can reasonably be discovered by the senior police officer (by asking the suspect or otherwise);

                     (e)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                      (f)  if the suspect gives any reasons for refusing to consent—the reasons;

                     (g)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the senior police officer may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior police officer must (where appropriate) take into account the religious beliefs of the suspect.

23WP  Record of senior police officer’s order

             (1)  The senior police officer must, at the time of, or as soon as practicable after, make an order under section 23WN, make a record of:

                     (a)  the order made; and

                     (b)  the date and time when the order was made; and

                     (c)  the reasons for making it;

and must sign the record.

             (2)  The senior police officer must ensure that a copy of the record is made available to the suspect as soon as practicable after the record is made.

Division 5—Forensic procedures on suspect by order of a magistrate

Subdivision A—General

23WQ  Forensic procedure may be carried out by order of magistrate

                   A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under section 23WS or 23XA. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

23WR  Circumstances in which magistrate may order forensic procedure

             (1)  A magistrate may, under section 23WS or 23XA, order the carrying out of a forensic procedure on a suspect if:

                     (a)  the suspect is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or

                     (b)  the suspect is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or

                     (c)  under section 23WE, the suspect cannot consent to the forensic procedure; or

                     (d)  the forensic procedure has been requested by a foreign country or an international tribunal.

             (2)  However, a magistrate is not authorised to order the carrying out of a forensic procedure on a suspect if the procedure has been requested by a foreign law enforcement agency.

Subdivision B—Final orders

23WS  Final order for carrying out of forensic procedure

                   A magistrate may order the carrying out of a forensic procedure on a suspect if:

                     (a)  subsection 23WR(1) applies; and

                     (b)  the magistrate is satisfied as required by section 23WT.

23WT  Matters to be considered by magistrate before ordering forensic procedure

             (1)  The magistrate must be satisfied on the balance of probabilities that:

                     (a)  the person on whom the procedure is proposed to be carried out is a suspect; and

                     (b)  on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and

                     (c)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                    (ca)  if the forensic procedure has been requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part; and

                     (d)  the carrying out of the forensic procedure is justified in all the circumstances.

             (2)  In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:

                     (a)  if the forensic procedure has been requested by a foreign country or an international tribunal—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and

                     (b)  in any other case—balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the magistrate must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect’s alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);

                     (e)  if the suspect is a child or an incapable person—the welfare of the suspect;

                      (f)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                     (g)  if the suspect gives any reasons for refusing to consent—the reasons;

                     (h)  if the suspect is in custody:

                              (i)  the period for which the suspect has already been detained; and

                             (ii)  the reasons for any delay in proposing the carrying out of the forensic procedure;

                      (i)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

23WU  Application for order

             (1)  An authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect.

             (2)  An application for an order must:

                     (a)  be made in writing; and

                     (b)  be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a), (b), (c), (ca) and (d); and

                     (c)  specify the type of forensic procedure sought to be carried out; and

                     (d)  be made in the presence of the suspect (subject to any contrary order made by the magistrate).

23WV  Securing the presence of suspect at hearing—suspect in custody

             (1)  If the suspect is in the custody of another constable or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody), the magistrate may, on the application of a constable, issue a warrant directing the person holding the suspect in original custody to deliver the suspect into the custody of the constable (temporary custody) for the hearing of an application for an order under this Division.

             (2)  The constable given temporary custody must return the suspect to the place of original custody:

                     (a)  if the application for the order is refused—without delay; or

                     (b)  if the order is made—without delay at the end of the period for which the suspect may be detained in custody under section 23XGD.

23WW  Securing the presence of suspect at hearing—suspect not in custody

             (1)  If the suspect is not in custody, the magistrate may, on the application of a constable:

                     (a)  issue a summons for the appearance of the suspect at the hearing of the application; or

                     (b)  issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the magistrate for the hearing of the application.

             (2)  An application for a summons under subsection (1) must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

             (3)  The magistrate may issue a summons only if satisfied:

                     (a)  that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application; or

                     (b)  that the issue of the summons is otherwise justified.

             (4)  An application for a warrant under subsection (1) must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).

             (5)  The magistrate may issue a warrant only if satisfied:

                     (a)  that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance; or

                     (b)  that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure; or

                     (c)  that the issue of the warrant is otherwise justified.

23WX  Procedure at hearing of application for order

             (1)  An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the magistrate.

             (2)  A suspect who is:

                     (a)  a child; or

                     (b)  an incapable person;

must be represented by an interview friend and may also be represented by a legal practitioner.

             (3)  If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect must be represented by an interview friend and may also be represented by a legal practitioner.

             (4)  Subsection (3) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the hearing by comparison with members of the Australian community generally.

             (5)  Any other suspect (including a suspect covered by subsection (4)) may be represented by a legal practitioner.

             (6)  The suspect or his or her representative:

                     (a)  may call or cross‑examine the applicant for the order; and

                     (b)  may, with the leave of the magistrate, call or cross‑examine any other witnesses; and

                     (c)  may address the magistrate.

          (6A)  A magistrate must not give leave under paragraph (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross‑examined.

             (7)  In spite of subsection (2) or (3), the suspect’s interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.

23WY  Making of order

             (1)  If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must:

                     (a)  give reasons for making the order; and

                     (b)  ensure that a written record of the order is kept; and

                     (c)  order the suspect to attend for the carrying out of the forensic procedure; and

                     (d)  inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.

             (2)  The magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.

Subdivision C—Interim orders

23XA  Interim order for carrying out of a forensic procedure

             (1)  A magistrate may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:

                     (a)  subsection 23WR(1) applies; and

                     (b)  the magistrate is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and

                     (c)  the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters referred to in subsection 23WT(1) when the application is finally determined.

             (2)  An interim order operates as provided by this Subdivision until a magistrate, at a hearing held under Subdivision B, confirms the interim order or disallows the interim order.

Note:          Subsection 23XD(2) requires that an interim order specify the intended date, time and place of the later hearing.

             (3)  Subdivision B applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 23WS, and an order confirming the interim order is taken to be an order under section 23WS.

23XB  Application for interim order

             (1)  An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 23WS, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.

             (2)  An application for an interim order must:

                     (a)  be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a), (b) and (c); and

                     (b)  specify the type of forensic procedure sought to be carried out.

             (3)  An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, fax or other means of transmission.

             (4)  The suspect must be in the presence of the authorised applicant when the application is made.

             (5)  If the suspect is:

                     (a)  a child; or

                     (b)  an incapable person;

an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.

             (6)  If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (5), an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.

             (7)  Subsection (6) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the application by comparison with members of the Australian community generally.

             (8)  If the suspect is not covered by subsection (5) or (6), the suspect’s legal representative (if any) must also be in the presence of the authorised applicant.

             (9)  In spite of subsection (5) or (6), the suspect’s interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.

23XC  Procedure at hearing of application for interim order

             (1)  If the application is made in person, or by telephone or radio or other form of oral communication, the magistrate must ensure that:

                     (a)  the suspect; and

                     (b)  the suspect’s legal representative, if any; and

                     (c)  the suspect’s interview friend, if any;

are given an opportunity to speak to the magistrate.

             (2)  If the application is made by telex, fax or other form of written communication, the magistrate must ensure that:

                     (a)  the suspect; and

                     (b)  the suspect’s legal representative, if any; and

                     (c)  the suspect’s interview friend, if any;

are given an opportunity to make a written submission to accompany the application, or to speak to the magistrate by telephone, radio or other form of oral communication.

23XD  Making of interim order

             (1)  A magistrate who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, fax or other means of transmission:

                     (a)  that the order has been made; and

                     (b)  of the terms of the order, including the matters mentioned in subsection (2); and

                     (c)  of any orders made or directions given under subsection (3) in relation to the order.

             (2)  An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.

             (3)  A magistrate may make such orders and give such directions in relation to an interim order as the magistrate may make or give in relation to an order under section 23WS.

23XE  Records of application and interim order

             (1)  The applicant for an interim order must, at the time of, or as soon as practicable after, applying for the interim order, make a record (the applicant’s record) of:

                     (a)  the application; and

                     (b)  the grounds for seeking the order; and

                     (c)  the order made; and

                     (d)  the date and time when the order was made; and

                     (e)  the magistrate’s name;

and sign the record.

             (2)  The applicant must send a copy of the applicant’s record to the magistrate as soon as practicable after it is made.

             (3)  The magistrate must, at the time of, or as soon as practicable after, making an interim order, make a record (the magistrate’s record) of:

                     (a)  the application; and

                     (b)  the grounds for seeking the order; and

                     (c)  the order made; and

                     (d)  the date and time when the order was made; and

                     (e)  the reasons for making it;

and sign the record.

             (4)  The magistrate must send a copy of the magistrate’s record to the applicant as soon as practicable after the record is made.

             (5)  The applicant must ensure that a copy of the magistrate’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the magistrate’s record.

             (6)  If the applicant’s record does not, in all material respects, accord with the magistrate’s record, the order is taken to have had no effect.

23XF  Suspect may be prevented from destroying or contaminating evidence

             (1)  A constable may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.

             (2)  Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.

23XG  Results of forensic procedure carried out under interim order

             (1)  A sample taken under an interim order must not be analysed unless:

                     (a)  the sample is likely to perish before a final order is made; or

                     (b)  a final order is made.

             (2)  A person who conducts an analysis in the circumstances set out in paragraph (1)(a) must not intentionally disclose the results of the analysis to any person:

                     (a)  during the period before a final order is made; or

                     (b)  if the interim order is disallowed.

Penalty for a contravention of subsection (2):      Imprisonment for 12 months.

Subdivision D—Time limits for forensic procedures ordered by magistrates

23XGA  Application

                   This Subdivision applies where a magistrate orders the carrying out of a forensic procedure on a suspect under this Part.

23XGB  Time for carrying out forensic procedure—suspect not in custody

             (1)  If a suspect who is not in custody presents himself or herself to the investigating constable to undergo the procedure ordered by the magistrate, the procedure must be carried out as quickly as reasonably possible but in any case within the following period:

                     (a)  if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;

                     (b)  in any other case—4 hours after the suspect so presents himself or herself.

             (2)  In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:

                     (a)  the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;

                     (b)  any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;

                     (c)  any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;

                     (d)  any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;

                     (e)  any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;

                      (f)  any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;

                     (g)  any time during which carrying out the procedure is suspended or delayed at the request of the suspect.

23XGC  Arrest of suspect not in custody

             (1)  If the suspect is not in custody, the magistrate may, on the application of a constable, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.

             (2)  An application for a warrant must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

             (3)  The magistrate may issue a warrant only if satisfied:

                     (a)  that the arrest is necessary to ensure that the forensic procedure can be carried out; or

                     (b)  that the issue of the warrant is otherwise justified.

             (4)  A magistrate must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any magistrate) for the arrest of the suspect for the purpose of carrying out that forensic procedure.

23XGD  Time for carrying out forensic procedure—suspect in custody

             (1)  If the suspect is in custody (whether or not as the result of the issue of a warrant under section 23XGC), he or she may be detained in custody for such period (the detention period) as is reasonably necessary to carry out the forensic procedure but in any case for no longer than a period starting when:

                     (a)  the magistrate orders the carrying out of the procedure; or

                     (b)  the suspect is arrested pursuant to a warrant under section 23XGC;

whichever is later, and ending:

                     (c)  if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours later; or

                     (d)  in any other case—4 hours later.

             (2)  In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:

                     (a)  the time (if any) that is reasonably required to convey the suspect from the place where the suspect is when the detention period starts to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;

                     (b)  any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;

                     (c)  any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;

                     (d)  any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;

                     (e)  any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;

                      (f)  any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;

                     (g)  any time during which the suspect is being questioned under Part IC;

                     (h)  any time that is to be disregarded under subsection 23C(7) or 23DB(9).

Subdivision E—Reports of proceedings under Division

23XH  Restrictions on publication

                   A person must not intentionally, in any report of a proceeding under this Division, publish:

                     (a)  the name of the suspect; or

                     (b)  any information likely to enable the identification of the suspect;

unless the suspect has been charged with a relevant offence or the magistrate, by order, has authorised such publication.

Penalty:  Imprisonment for 12 months.

Division 6—Carrying out forensic procedures on suspects

Subdivision A—General provisions

23XI  General rules for carrying out forensic procedures

                   A forensic procedure:

                     (a)  must be carried out in circumstances affording reasonable privacy to the suspect; and

                     (b)  except as permitted (expressly or impliedly) by other provisions of this Part, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect; and

                     (c)  must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Part; and

                     (d)  must not involve the removal of more clothing than is necessary for the carrying out of the procedure; and

                     (e)  must not involve more visual inspection than is necessary for the carrying out of the procedure.

23XIA  No questioning during forensic procedure

                   A forensic procedure must not be carried out while the suspect is being questioned as defined in subsection 23B(6). If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out.

23XIB  Suspect must be cautioned before forensic procedure starts

                   Before anyone starts to carry out a forensic procedure on a suspect, a constable must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence.

23XJ  Use of force in carrying out forensic procedures

             (1)  Subject to subsection (2) and section 23XK, a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:

                     (a)  to enable a forensic procedure to be carried out; or

                     (b)  to prevent loss, destruction or contamination of any sample.

             (2)  All forensic procedures are to be carried out in a manner consistent with appropriate medical or other relevant professional standards.

23XK  Forensic procedures not to be carried out in cruel, inhuman or degrading manner

                   For the purpose of this Part, the carrying out of a forensic procedure is not of itself taken to be cruel, inhuman or degrading. However, nothing in this Part authorises the carrying out of a forensic procedure in a cruel, inhuman or degrading manner.

23XL  Taking of hair samples

                   A person is authorised to take a sample of hair of a suspect by removing the root of the hair only if:

                     (a)  the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the offence; and

                     (b)  the sample is taken using the least painful technique known and available to the person.

Subdivision B—Persons involved in forensic procedures

23XM  Persons who may carry out forensic procedures

             (1)  The table following subsection (4) shows, for each forensic procedure, the persons who may carry out the procedure under this Part. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 23XO.

             (2)  The third column of the table following subsection (4) shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect’s choice is present while the forensic procedure is carried out.

Note:          Section 23XP makes detailed provision for the presence of a medical practitioner or dentist of the suspect’s choice while a forensic procedure is carried out.

             (3)  A person is authorised to carry out a particular forensic procedure if he or she is an appropriately qualified person in relation to the procedure even if the person also satisfies another description specified in the following table that is not specified in relation to the particular forensic procedure.

Example:    A constable who is an appropriately qualified person to take samples of blood may take such samples even though the table does not expressly list constables as persons who may take samples of blood.

             (4)  This section does not prevent a suspect from taking a sample of saliva, or a sample by buccal swab, from himself or herself under the supervision of an appropriately qualified person.

 

Who may carry out forensic procedures
	Forensic procedure	Persons who may carry out forensic procedure	Is suspect entitled to request presence of medical practitioner or dentist of suspect’s choice?
1	external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts	medical practitioner nurse appropriately qualified person	yes (medical practitioner)
2	the taking of a sample of blood (other than by a finger prick)	medical practitioner nurse appropriately qualified person	yes (medical practitioner)
4	the taking of a sample of pubic hair	medical practitioner nurse appropriately qualified person	yes (medical practitioner)
5	the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts	medical practitioner nurse appropriately qualified person	yes (medical practitioner)
6	the taking of a sample by vacuum suction, scraping or lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts	medical practitioner nurse appropriately qualified person	yes (medical practitioner)
7	the taking of a dental impression	medical practitioner dentist dental technician	yes (dentist or medical practitioner)
8	the taking of a photograph or a video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female, the breasts	appropriately qualified person	yes (medical practitioner)
9	external examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts, that requires touching of the body or removal of clothing	medical practitioner nurse appropriately qualified person	no
9A	the taking of a sample of blood by a finger prick	medical practitioner nurse constable appropriately qualified person	no
9B	the taking of a sample of saliva, or a sample by buccal swab	medical practitioner dentist dental technician nurse constable appropriately qualified person	no
10	the taking of a sample of hair other than pubic hair	medical practitioner nurse constable appropriately qualified person	no
11	the taking of a sample from a nail or from under a nail	medical practitioner nurse constable appropriately qualified person	no
12	the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts	medical practitioner nurse appropriately qualified person	no
13	the taking of a sample by vacuum suction, scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts	medical practitioner nurse appropriately qualified person	no
14	the taking of a hand print, finger print, foot print or toe print	appropriately qualified person	no
15	the taking of a photograph or a video recording of, or an impression or cast of a wound from, an external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts	appropriately qualified person	no

Note:          Appropriately qualified (as used in the expression “appropriately qualified person”) is defined in section 23WA.

Subdivision C—Further provisions about who may carry out forensic procedures

23XN  Certain forensic procedures generally to be carried out by person of same sex as suspect

             (1)  If practicable, an intimate forensic procedure (other than the taking of a sample of blood or a dental impression) is to be carried out:

                     (a)  if the suspect is an adult—by a person of the same sex as the suspect; or

                     (b)  if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.

             (2)  If practicable, a non‑intimate forensic procedure for which the suspect is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out:

                     (a)  if the suspect is an adult—by a person of the same sex as the suspect; or

                     (b)  if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.

             (3)  If practicable, a person asked under section 23XO to help carry out a forensic procedure covered by subsection (1) or (2):

                     (a)  is to be:

                              (i)  if the suspect is an adult—a person of the same sex as the suspect; or

                             (ii)  if the suspect is a child—a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect; and

                     (b)  is to be a person who is not inappropriate to help carry out the forensic procedure.

23XO  Person may get help to carry out forensic procedures

             (1)  A person who is authorised to carry out a forensic procedure under the table in section 23XM is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.

             (2)  A person who is asked to help carry out a forensic procedure need not be a person mentioned in the table in section 23XM.

             (3)  A person who is asked to help carry out a forensic procedure may use reasonable force to enable the forensic procedure to be carried out.

Subdivision D—Presence of other people while forensic procedure is carried out

23XP  Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures

             (1)  A suspect is entitled to request a medical practitioner or dentist (the expert) of his or her choice as shown in the table in section 23XM to be present while a forensic procedure (other than a non‑intimate forensic procedure) is carried out.

Note:          Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.

             (2)  The expert chosen is to be present at the forensic procedure unless he or she:

                     (a)  is unable, or does not wish, to attend; or

                     (b)  cannot be contacted;

within a reasonable time or, if relevant, within the time in which the person responsible for the effective carrying out of the forensic procedure considers the forensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.

23XQ  Presence of interview friend or legal representative—children and incapable persons

             (1)  This section applies if the suspect is:

                     (a)  a child; or

                     (b)  an incapable person.

             (2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

             (3)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.

23XR  Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders

             (1)  This section applies if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by section 23XQ.

             (2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

             (3)  Subsection (2) does not apply if:

                     (a)  the investigating constable believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in respect of the carrying out of the forensic procedure by comparison with members of the Australian community generally; or

                     (b)  the suspect expressly and voluntarily waives his or her right to have an interview friend present.

Note:          Section 23YK relates to proving a waiver under subsection (3).

             (4)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.

23XS  Presence of constables

             (1)  The number of constables that may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Part.

             (2)  Where the presence of a constable (other than a constable who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Part, the constable is:

                     (a)  if the suspect is a child—to be of the same sex as the suspect; or

                     (b)  in any other case—to be of the same sex as the suspect unless it is not practicable for such a constable to attend within a reasonable time.

Note:          Section 23XN provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.

             (3)  This section does not apply to the following forensic procedures:

                     (a)  the taking of hand prints, finger prints, foot prints or toe prints;

                     (b)  any non‑intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and hat.

23XSA  Presence of prison officers

                   If:

                     (a)  a particular suspect is being detained in prison; and

                     (b)  a forensic procedure is to be carried out on the suspect (whether or not the forensic procedure is to be carried out in prison);

one or more prison officers may be present while the forensic procedure is carried out.

Subdivision E—Recording of forensic procedure

23XT  Recording of forensic procedure

             (1)  The carrying out of a forensic procedure (other than the taking of a hand print, finger print, foot print or toe print) must be video recorded unless:

                     (a)  the suspect objects to the video recording; or

                     (b)  the video recording is not practicable.

             (2)  Before the forensic procedure is carried out, the suspect must be informed:

                     (a)  of the reasons for video recording the carrying out of the forensic procedure, including the protection that the video recording provides for the suspect; and

                     (b)  that the suspect may object to the video recording.

             (3)  In spite of section 23YE, an interview friend of an Aboriginal person or a Torres Strait Islander not covered by section 23XQ has no right to object to the video recording of the forensic procedure.

Note:          Section 23YE gives interview friends and legal representatives general powers to act on behalf of suspects. Section 23XQ applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.

             (4)  If the carrying out of the forensic procedure is not to be video recorded, the forensic procedure must be carried out in the presence of an independent person (not a constable).

Subdivision F—Procedure after forensic procedure is carried out

23XU  Samples—sufficient material to share

             (1)  This section applies if:

                     (a)  a sample is taken from a suspect under this Part; and

                     (b)  the suspect requests the investigating constable that the sample be shared; and

                     (c)  there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.

             (2)  The investigating constable must invite the suspect to nominate an accredited laboratory to which a part of the material sufficient for analysis will be provided on behalf of the suspect.

             (3)  If the suspect nominates an accredited laboratory, the investigating constable must ensure that:

                     (a)  a part of the material sufficient for analysis is provided to that laboratory, on behalf of the suspect, within the period of 28 days beginning on the day of the nomination; and

                     (b)  reasonable care is taken to ensure that the suspect’s part of the material is protected and preserved until it is provided to that laboratory.

Note:          Division 9 contains provisions about making material available to the suspect.

             (4)  The suspect must bear the costs in relation to any analysis of that part of the material provided to that laboratory.

23XUA  Samples—insufficient material to share

             (1)  This section applies to a sample taken from a suspect under this Part if:

                     (a)  there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and

                     (b)  the material does not need to be analysed immediately after the sample is taken.

             (2)  The suspect is entitled to request the investigating constable that a person (the attendee) of the suspect’s choice be present while the material is analysed in the investigation of the offence.

Note:          Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.

          (2A)  The investigating constable must then inform the suspect that the attendee may be directed by the person (the analyst) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.

             (3)  Subject to this section, the attendee is to be present at the analysis of the material unless he or she:

                     (a)  is unable, or does not wish, to attend; or

                     (b)  cannot be contacted;

within a reasonable time or, if relevant, within the time in which the analyst considers the analysis should be carried out if it is to provide valid results.

             (4)  The analyst may give instructions to the attendee relating to the analysis of the material.

             (5)  The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction.

             (6)  If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction.

             (7)  The attendee commits an offence if:

                     (a)  the attendee is given a direction under subsection (5); and

                     (b)  the attendee fails to comply with the direction.

Penalty:  30 penalty units.

             (8)  An offence against subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

23XV  Photographs

                   Where a forensic procedure involves the taking of a photograph of a part of a suspect’s body, the investigating constable must ensure that a copy of the photograph is made available to the suspect.

Note:          Division 9 contains provisions about making copies of material available to the suspect.

23XW  Results of analysis

                   If:

                     (a)  material from a sample taken from a suspect is analysed in the investigation of the offence; and

                     (b)  before or after the analysis, the suspect has requested the investigating constable that a copy of the results of any analysis be provided to the suspect;

then the investigating constable must ensure that, within 14 days of the analysis or of the request (whichever is the later):

                     (c)  a copy of the results of the analysis is provided to the suspect; and

                     (d)  if the DNA profile derived from that material has been matched, as part of the investigation of the offence, under section 23YDAF with a DNA profile placed on the crime scene index in relation to the offence—the suspect is informed in writing of that match.

23XWA  Preventing the carrying out of forensic procedure

                   A person commits an offence if the person obstructs, hinders or resists a person carrying out a forensic procedure in accordance with this Part.

Penalty:  Imprisonment for 2 years.

Division 6A—Carrying out of certain forensic procedures after conviction of serious and prescribed offenders

23XWB  Forensic procedures to which Division applies

Intimate forensic procedure to which Division applies

             (1)  This Division applies to an intimate forensic procedure that is the taking of a sample of blood (other than by a finger prick).

Non‑intimate forensic procedures to which Division applies

             (2)  This Division applies to the following non‑intimate forensic procedures:

                     (a)  the taking of samples of hair other than pubic hair;

                     (b)  the taking of fingerprints;

                     (c)  the taking of a sample of blood by a finger prick;

                     (d)  the taking of a sample of saliva, or a sample by buccal swab.

Application of Division

             (3)  A person is authorised by this section to carry out a forensic procedure under this Division on a serious offender or a prescribed offender whether convicted of the serious or prescribed offence concerned before or after the commencement of this section.

23XWC  Non‑intimate forensic procedures authorised to be carried out on offenders

             (1)  A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a person (other than a child or an incapable person) who is a serious offender:

                     (a)  with the informed consent of the serious offender; or

                     (b)  by order of a constable under section 23XWK; or

                     (c)  by order of a judge or magistrate under section 23XWO.

             (2)  A person is authorised to take the fingerprints of a prescribed offender (other than a child or an incapable person):

                     (a)  with the informed consent of the prescribed offender; or

                     (b)  by order of a constable under section 23XWK.

             (3)  A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender, or to take the fingerprints of a child or incapable person who is a prescribed offender, by order of a judge or magistrate under section 23XWO.

23XWD  Intimate forensic procedures authorised to be carried out on serious offenders

                   A person is authorised to carry out an intimate forensic procedure to which this Division applies on a person (other than a child or incapable person) who is a serious offender:

                     (a)  with the informed consent of the serious offender; or

                     (b)  by order of a judge or magistrate under section 23XWO.

23XWE  Application of Division 6

             (1)  Division 6 applies in relation to the carrying out under this Division of a forensic procedure on an offender. For this purpose:

                     (a)  references in Division 6 to the suspect are taken to be references to the offender; and

                     (b)  references in Subdivision F of Division 6 to the investigating constable are taken to be references to the Commissioner.

Note:          By applying Division 6, sections 23XJ (about use of force in carrying out forensic procedures) and 23XK (about forensic procedures not being carried out in a cruel, inhuman or degrading manner) apply to the carrying out of a forensic procedure under this Division.

             (2)  A person is authorised by section 23XWC or 23XWD to carry out a forensic procedure under this Division in accordance with Division 6 as applied by this section and not otherwise.

23XWF  Scope of authorisation

             (1)  A person is not authorised to carry out a forensic procedure under this Division on a serious offender or a prescribed offender if the serious offender or prescribed offender is a suspect or a volunteer.

             (2)  A forensic procedure may be carried out on a serious offender or prescribed offender who is a suspect only if authorised by and in accordance with Divisions 2 to 5.

             (3)  A forensic procedure may be carried out on a serious offender or prescribed offender who is a volunteer only if authorised by and in accordance with Division 6B.

23XWG  Informed consent to forensic procedures

             (1)  An offender gives informed consent to a forensic procedure if the offender consents after a constable:

                     (a)  requests the offender to consent to the forensic procedure under section 23XWH; and

                     (b)  informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and

                     (c)  gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender’s choice.

             (2)  The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

Note:          Section 23YI states that the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.

23XWH  Constable may request offender to consent to forensic procedure

                   A constable may request:

                     (a)  a serious offender (other than a child or an incapable person) to consent to an intimate or non‑intimate forensic procedure to which this Division applies being carried out on the serious offender; or

                     (b)  a prescribed offender (other than a child or an incapable person) to consent to the taking of the offender’s fingerprints.

23XWI  Matters to be considered by constable before requesting consent to forensic procedure

                   Before a request is made under section 23XWH, the constable must be satisfied on the balance of probabilities that:

                     (a)  in the case of a person on whom the procedure is proposed to be carried out who is not serving a sentence of imprisonment in a prison or other place of detention—that the person is an offender; and

                     (b)  the request for consent to carry out the forensic procedure is justified in all the circumstances.

23XWJ  Matters that offender must be informed of before giving consent

             (1)  The constable must inform the offender of the following:

                     (a)  the purpose for which the forensic procedure is required;

                     (b)  if the constable wants the forensic procedure carried out in relation to an offence—the offence concerned;

                     (c)  the way in which the forensic procedure is to be carried out;

                     (d)  that the forensic procedure may produce evidence against the offender that might be used in a court of law;

                     (e)  that the forensic procedure will be carried out by a person who may carry out the procedure under Division 6 as applied by section 23XWE;

Note:       See section 23XM.

                      (f)  if the forensic procedure is the taking of a sample of blood, that the offender may request that:

                              (i)  if the offender is serving a sentence of imprisonment in a prison or other place of detention—the prison medical officer be present while the blood is taken; or

                             (ii)  if the offender is not serving a sentence of imprisonment—a medical practitioner of the offender’s choice be present while the blood is taken;

                     (g)  that the offender may refuse consent to the carrying out of the forensic procedure;

                     (h)  the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);

                      (i)  the effect of section 23XZ (if applicable);

                      (j)  that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the Commonwealth DNA database system may be used under Division 8A.

Effect of failure to consent to non‑intimate forensic procedure

             (2)  The constable must inform a serious offender requested to undergo a non‑intimate forensic procedure to which this Division applies or a prescribed offender requested to consent to the taking of his or her fingerprints that, if the offender does not consent, a constable may order the carrying out of the forensic procedure under section 23XWK if the constable has taken into account the matters set out in section 23XWL.

Effect of failure to consent to intimate forensic procedure

             (3)  The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

23XWK  Circumstances in which constable may order non‑intimate forensic procedure

                   A constable may order the carrying out of a non‑intimate forensic procedure to which this Division applies on a serious offender or the taking of the fingerprints of a prescribed offender other than a child or an incapable person if:

                     (a)  the offender has been asked under section 23XWH to consent to the carrying out of the forensic procedure; and

                     (b)  the offender has not consented; and

                     (c)  the constable has taken into account the matters set out in section 23XWL.

23XWL  Matters to be considered by constable

                   In determining whether to make an order under section 23XWK, the constable is to take into account:

                     (a)  whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and

                     (b)  the seriousness of the circumstances surrounding the offence committed by the offender; and

                     (d)  whether the carrying out of the forensic procedure without consent is justified in all the circumstances.

23XWM  Recording of giving of information and consent

             (1)  The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the offender’s responses (if any) are tape recorded.

             (2)  If tape recording the giving of the information and the offender’s responses (if any) is not practicable, the constable must ensure that:

                     (a)  a written record of the giving of the information and the offender’s responses (if any) is made; and

                     (b)  a copy of the record is made available to the serious offender.

Note:          Division 9 contains provisions about making copies of material (including tapes) available to the serious offender.

23XWN  Record of constable’s order

             (1)  The constable must, at the time of, or as soon as practicable after, making an order under section 23XWK, make a record of:

                     (a)  the order; and

                     (b)  the date and time when the order was made; and

                     (c)  the reasons for making it, and sign the record.

             (2)  The constable must ensure that a copy of the record is made available to the offender as soon as practicable after the record is made.

23XWNA  Circumstances in which judge or magistrate may order forensic procedure

                   A judge or magistrate may, under section 23XWO, order the carrying out of a forensic procedure on an offender if:

                     (a)  the offender is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or

                     (b)  the offender is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or

                     (c)  under section 23WE, the offender cannot consent to the forensic procedure.

23XWO  Judge or magistrate order for carrying out forensic procedure on offender

             (1)  An authorised applicant may apply to any judge or magistrate for an order for the carrying out of an intimate forensic procedure, or a non‑intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person).

             (2)  An authorised applicant may apply to any judge or magistrate for an order for the carrying out of a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender.

             (3)  An application under subsection (1) or (2) must be accompanied by an affidavit by the authorised applicant dealing with the matters referred to in subsection (7).

             (4)  An authorised applicant may apply to any judge or magistrate for an order for the taking of the fingerprints under this Division of a child or an incapable person who is a prescribed offender.

             (5)  An authorised applicant may make an application under this section to the judge or magistrate that is sentencing an offender or to any other judge or magistrate at a later time.

             (6)  A judge or magistrate may order the carrying out of a forensic procedure under this Division if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.

             (7)  In determining whether to make an order under this section, a judge or magistrate is to take into account:

                     (a)  whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and

                     (b)  the seriousness of the circumstances surrounding the commission of the offence by the offender; and

                     (d)  whether the carrying out of the forensic procedure is justified in all the circumstances.

             (8)  An order under this section takes effect immediately. However, the person who conducts any analysis of forensic material obtained as a result of carrying out the forensic procedure on an offender must not disclose the results of the analysis:

                     (a)  until the expiration of any appeal period or after the final determination of any appeal in relation to the offence concerned, whichever is the later; or

                     (b)  if the conviction is quashed.

23XWOA  Securing the presence of offender at hearing—offender in custody

             (1)  If:

                     (a)  an application is made under section 23XWO to a judge or magistrate for an order under that section for the carrying out of a forensic procedure on an offender; and

                     (b)  the offender is in custody or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody);

the judge or magistrate may, on the application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody (temporary custody) of the constable for the hearing of the application.

             (2)  If the judge or magistrate refuses to make the order under section 23XWO, the constable given temporary custody of the offender must return the offender to the place of original custody without delay.

             (3)  If the judge or magistrate makes the order under section 23XWO, the judge or magistrate may:

                     (a)  order the constable given temporary custody of the offender:

                              (i)  to convey the offender to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to that constable; and

                             (ii)  to return the offender to the place of original custody without delay after the procedure is carried out; or

                     (b)  order the constable given temporary custody of the offender to return the offender to the place of original custody without delay.

23XWOB  Securing the presence of offender at hearing—offender not in custody

             (1)  If:

                     (a)  an application is made under section 23XWO to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender; and

                     (b)  the offender is neither in custody nor detained under a law of the Commonwealth, a State or a Territory;

the judge or magistrate may, on the application of a constable:

                     (c)  issue a summons for the appearance of the offender at the hearing of the application; or

                     (d)  issue a warrant for the arrest of the offender for the purpose of bringing the offender before the judge or magistrate for the hearing of the application.

             (2)  An application for a summons under subsection (1) must be:

                     (a)  made by information on oath or affirmation; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

             (3)  The judge or magistrate may issue a summons only if satisfied:

                     (a)  that the issue of the summons is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO; or

                     (b)  that the issue of the summons is otherwise justified.

             (4)  An application for a warrant under subsection (1) must be:

                     (a)  made by information on oath or affirmation; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).

             (5)  The judge or magistrate may issue a warrant only if satisfied:

                     (a)  that the arrest is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO, and that the issue of a summons would not ensure that appearance; or

                     (b)  that the offender might destroy evidence that might be obtained by carrying out the forensic procedure; or

                     (c)  that the issue of the warrant is otherwise justified.

23XWP  Carrying out forensic procedure following conviction

             (1)  If:

                     (a)  an offender is in prison or another place of detention; and

                     (b)  a judge or magistrate orders the carrying out of a forensic procedure under this Division on the offender;

the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.

             (2)  In subsection (1), Division 6 person means a person who, under Division 6 as applied by section 23XWE, may carry out the forensic procedure.

             (3)  If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.

             (4)  If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender commits an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.

Penalty:  Imprisonment for 12 months.

Note:          A defendant bears the evidential burden in relation to the exception of reasonable excuse—see subsection 13.3(3) of the Criminal Code.

Division 6B—Carrying out of forensic procedures on volunteers and certain other persons

23XWQ  Carrying out of forensic procedures on volunteers

             (1)  In this Part:

volunteer means a person:

                     (a)  who volunteers to a constable to undergo a forensic procedure; or

                     (b)  in the case of a child or incapable person—whose parent or guardian volunteers on the child or incapable person’s behalf to a constable that the child or incapable person undergo a forensic procedure.

             (2)  A person (the authorised person) is authorised to carry out a forensic procedure:

                     (a)  on a volunteer other than a child or an incapable person—with the informed consent of the volunteer given in accordance with section 23XWR; or

                     (b)  on a volunteer who is a child or an incapable person:

                              (i)  with the informed consent of the parent or guardian of the volunteer given in accordance with section 23XWR or by order of a magistrate under section 23XWU; and

                            (ia)  in a case where the informed consent of the parent or guardian of the volunteer is given in accordance with section 23XWR—after the constable concerned has informed the child or incapable person that, even though consent has been given, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out; and

                             (ii)  after the authorised person has informed the child or incapable person that, even though consent has been given or an order made, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out.

             (3)  This section only authorises a person to carry out a forensic procedure if the procedure is necessary, or incidental to, the carrying out of an AFP function.

             (4)  This section does not authorise a person to carry out a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the forensic procedure.

             (5)  Division 6 applies to the carrying out of a forensic procedure under this Division as if the references to a suspect in that Division were references to a volunteer referred to in this section. A person is authorised by this section to carry out a forensic procedure on a volunteer in accordance with Division 6 as so applied and not otherwise.

23XWR  Informed consent of volunteer or parent or guardian of volunteer

             (1)  A volunteer, or parent or guardian of a volunteer, gives informed consent in accordance with this section if the volunteer, parent or guardian consents in the presence of an independent person (not being a constable) after a constable informs the volunteer, parent or guardian, in accordance with the regulations, of the following matters:

                     (a)  the way in which the forensic procedure is to be carried out;

                     (b)  that the volunteer is under no obligation to undergo the forensic procedure;

                     (c)  that the forensic procedure may produce evidence that might be used in a court of law;

                     (d)  to the extent that they are relevant, the matters specified in subsection (2);

                     (e)  that the volunteer, parent or guardian may consult a legal practitioner of the volunteer’s, parent’s or guardian’s choice before deciding whether or not to consent to the forensic procedure;

                      (f)  that the volunteer, parent or guardian may at any time withdraw consent to:

                              (i)  the volunteer undergoing the forensic procedure; or

                             (ii)  retention of the forensic material taken; or

                            (iii)  retention of information obtained from the analysis of that material.

             (2)  The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:

                     (a)  that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the Commonwealth DNA database system;

                     (b)  that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and

                   (ba)  if the information is placed on the volunteers (limited purposes) index—the purpose for which the information is placed on the index and that the information may only be used for that purpose;

                     (c)  if the information is placed on the volunteers (unlimited purposes) index—that the information may be used for the purposes of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under Division 8A;

                     (d)  that information placed on the Commonwealth DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;

                   (da)  if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal)—the following:

                              (i)  the name of the foreign law enforcement agency that has made the request;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;

                            (iii)  that the forensic evidence may be used in proceedings in the foreign country;

                            (iv)  that the retention of the forensic evidence will be governed by the laws of the foreign country;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;

                            (vi)  the content of those undertakings;

                   (db)  if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal—the following:

                              (i)  the name of the international tribunal for which the request was made;

                             (ii)  that forensic evidence resulting from the forensic procedure will be provided to the agency;

                            (iii)  that the forensic evidence may be used in proceedings in the international tribunal;

                            (iv)  that the retention of the forensic evidence will be governed by the rules of the international tribunal;

                             (v)  that the retention of the forensic evidence will be subject to undertakings given by the agency;

                            (vi)  the content of those undertakings;

                     (e)  any other matters prescribed by the regulations.

23XWS  Recording of giving of information and consent

             (1)  The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the volunteer’s or volunteer’s parent’s or guardian’s responses (if any) are tape recorded.

             (2)  If tape recording the giving of information and the volunteer’s, parent’s or guardian’s responses (if any) is not practicable, the constable must ensure that:

                     (a)  a written record of the giving of the information and the volunteer’s, parent’s or guardian’s responses (if any) is made; and

                     (b)  a copy of the record is made available to the volunteer, parent or guardian.

Note 1:       Division 9 contains provisions about making copies of material (including copies of tapes) available to volunteers.

Note 2:       If a foreign law enforcement agency requests that a forensic procedure be carried out on a volunteer, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).

23XWT  Withdrawal of consent

             (1)  If a volunteer, or parent or guardian of the volunteer, expressly withdraws consent to the carrying out of a forensic procedure under this Division (or if the withdrawal of such consent can reasonably be inferred from the volunteer’s, parent’s or guardian’s conduct) before or during the carrying out of the forensic procedure:

                     (a)  the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and

                     (b)  the forensic procedure is not to proceed except (in the case of a child or incapable person) by order of a magistrate under section 23XWU.

             (2)  If:

                     (a)  a forensic procedure is carried out on a volunteer under this Division; and

                     (b)  after the procedure is carried out, the volunteer, or the parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or of information obtained from the analysis of that material;

then, subject to any order made under section 23XWV, the forensic material and any information obtained from analysis of the material is to be destroyed as soon as practicable after the consent is withdrawn.

             (3)  A constable may request, but cannot require, a parent or guardian who withdraws consent to the carrying out of a forensic procedure under this Division to confirm the withdrawal of consent in writing.

23XWU  Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person

             (1)  A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:

                     (a)  the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or

                     (b)  the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:

                              (i)  that the parent or guardian is a suspect; and

                             (ii)  that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or

                     (c)  the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent; or

                     (d)  in the case of a forensic procedure requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part.

          (1A)  However, a magistrate is not authorised to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency.

             (2)  In determining whether to make an order under this section, the magistrate is to take into account the following:

                     (a)  whether this Part would authorise the carrying out of the forensic procedure apart from this section;

                     (b)  if the forensic procedure is being carried out for the purposes of the investigation of a particular offence—the seriousness of the circumstances surrounding the commission of the offence;

                     (c)  the best interests of the child or incapable person;

                     (d)  so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;

Note:          A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3).

                     (e)  except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;

                      (f)  whether the carrying out of the forensic procedure is justified in all the circumstances.

             (3)  An order under this section may:

                     (a)  require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or

                     (b)  specify the period for which forensic material obtained from carrying out the procedure may be retained.

23XWV  Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent

             (1)  An authorised applicant may apply to a magistrate for an order under subsection (2).

             (2)  Subject to subsection (2A), a magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:

                     (a)  during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:

                              (i)  at the scene of the offence; or

                             (ii)  on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

                            (iii)  on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or

                            (iv)  on an object or person reasonably believed to have been associated with the commission of the offence; and

                     (b)  there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and

                     (c)  the retention of the forensic material taken from the volunteer is justified in all the circumstances.

          (2A)  Despite subsection (2), a magistrate may not make an order if:

                     (a)  the volunteer was asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and

                     (b)  the forensic evidence has already been provided to the foreign law enforcement agency.

             (3)  The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.

Division 7—Admissibility of evidence

Subdivision A—Forensic evidence

23XX  Inadmissibility of evidence from improper forensic procedures etc.

             (1)  This section applies where:

                     (a)  a forensic procedure has been carried out on a person; and

                     (b)  there has been a breach of, or failure to comply with:

                              (i)  any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or

                             (ii)  any provision of Division 8A with respect to recording or use of information on the Commonwealth DNA database system.

             (2)  This section does not apply where:

                     (a)  a provision of this Part required forensic material to be destroyed; and

                     (b)  the forensic material has not been destroyed.

Note:          Section 23XY applies where this Part requires forensic material to have been destroyed.

             (3)  This section applies to:

                     (a)  evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and

                     (b)  evidence of any results of the analysis of the forensic material; and

                     (c)  any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

             (4)  Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

                     (a)  the person does not object to the admission of the evidence; or

                     (b)  the court is satisfied on the balance of probabilities of matters that, in the court’s opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.

             (5)  The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:

                     (a)  the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;

                     (b)  the reasons given for the failure to comply with the provisions of this Part;

                     (c)  the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;

                     (d)  whether the failure to comply with the provisions of this Part was intentional or reckless;

                     (e)  the nature of the provision of this Part that was not complied with;

                      (f)  the nature of the offence concerned and the subject matter of the proceedings;

                     (g)  whether admitting the evidence would seriously undermine the protection given to persons by this Part;

                     (h)  any other matters the court considers to be relevant.

             (6)  The probative value of the evidence does not by itself justify the admission of the evidence.

             (7)  If a judge permits evidence to be given before a jury under subsection (4), the judge must:

                     (a)  inform the jury of the breach of, or failure to comply with, a provision of this Part; and

                     (b)  give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.

23XY  Inadmissibility of evidence where forensic material required to be destroyed

             (1)  If a provision of this Part requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to:

                     (a)  evidence of the forensic material; and

                     (b)  if the material has not been destroyed—evidence consisting of the forensic material; and

                     (c)  any results of the analysis of the forensic material; and

                     (d)  any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

             (2)  The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.

Subdivision B—Other evidence

23XZ  Admissibility of evidence relating to consent to forensic procedure

                   Evidence of a person’s refusal or failure to consent, or withdrawal of consent, to a forensic procedure is not admissible in proceedings against the person except to establish or rebut an allegation that a constable or another person investigating the commission of the offence concerned acted contrary to law in carrying out that investigation.

23YA  Admissibility of evidence relating to carrying out of forensic procedure

                   In spite of subsection 23XX(4), evidence of how a forensic procedure was carried out is admissible in proceedings against the person in a court:

                     (a)  to establish or rebut an allegation that unreasonable force was used to enable the procedure to be carried out; or

                     (b)  to determine the admissibility of a confession or admission or other evidence adverse to the person where the person alleges that the evidence was induced or obtained by the use of unreasonable force; or

                     (c)  to establish or rebut an allegation that the forensic procedure was not carried out in accordance with Division 6.

23YB  Obstructing the carrying out of forensic procedure

             (1)  This section applies where a constable or magistrate has ordered the carrying out of a forensic procedure on a suspect under this Part.

             (2)  Subject to subsections (3) and (4), evidence that the suspect:

                     (a)  refused to comply with any reasonable direction in connection with the carrying out of the forensic procedure; or

                     (b)  obstructed, resisted, hindered, used violence against, threatened or intimidated a person in connection with the carrying out of the forensic procedure;

is admissible in any proceedings against the suspect in respect of a relevant offence.

             (3)  Evidence described in subsection (2) is not admissible if the forensic procedure was in fact carried out satisfactorily.

             (4)  Evidence described in subsection (2) is not admissible unless it is established that the suspect:

                     (a)  had been informed by a constable as described in subsection 23WA(4); or

                     (b)  otherwise knew;

that the fact of refusing to comply with the direction, or obstructing, resisting, hindering, using violence against, threatening or intimidating the person, in connection with the carrying out of the forensic procedure might be used in evidence against the suspect.

             (5)  The court or jury may draw such inferences from the evidence described in subsection (2) as appear to the court or jury to be proper in the circumstances, having regard to any evidence given by or on behalf of the suspect.

Subdivision C—Application

23YBA  Division does not apply to a proceeding in a foreign country or an international tribunal

                   To avoid doubt, this Division does not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:

                     (a)  a foreign country; or

                     (b)  an international tribunal; or

                     (c)  a foreign law enforcement agency.

Division 8—Destruction of forensic material

23YBB  Application

                   This Division does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency.

23YC  Destruction of forensic material where interim order disallowed

             (1)  If an interim order for the carrying out of a forensic procedure made under section 23XA is disallowed after the forensic procedure is carried out, the investigating constable must ensure that:

                     (a)  all forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the disallowance; and

                     (b)  a copy of the results of any analysis of the forensic material are made available to the suspect.

Note:          Division 9 contains provisions about making copies of material available to the suspect.

             (2)  If an order for the carrying out of a forensic procedure made under section 23XWU or for the retention of forensic material under section 23XWV specifies a period for which forensic material obtained as a result of the carrying out of the procedure may be retained, the forensic material is to be destroyed as soon as practicable after the end of the period.

23YD  Destruction of forensic material after 12 months

             (1)  This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under this Part (except Divisions 6A and 6B).

             (2)  If:

                     (a)  a period of 12 months has elapsed since the forensic material was taken; and

                     (b)  proceedings in respect of a relevant offence have not been instituted against the suspect, or have been discontinued;

the forensic material must be destroyed as soon as practicable unless a warrant for apprehension of the suspect has been issued.

             (3)  If:

                     (a)  the suspect is found to have committed a relevant offence but no conviction is recorded; or

                     (b)  the suspect is acquitted of such an offence and:

                              (i)  no appeal is lodged against the acquittal; or

                             (ii)  an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

                            the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the suspect for, another relevant offence is pending.

             (4)  If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after:

                     (a)  the warrant lapses; or

                     (b)  a period of 12 months elapses after the suspect is apprehended.

             (5)  A magistrate may, on application by a constable or the Director of Public Prosecutions, extend for a period not exceeding 12 months the period for which forensic material may be retained under this section, if the magistrate is satisfied there are special reasons for doing so.

             (6)  A magistrate to whom an application is made under subsection (5) is not to extend the period unless:

                     (a)  the person from whom the forensic material was taken has been notified by the applicant for the extension that the application has been made; and

                     (b)  the person or his or her legal representative or interview friend (if any) has been given the opportunity to speak to or make a submission to the magistrate concerning the extension.

             (7)  An extension in relation to particular forensic material may be given on more than one occasion.

             (8)  The magistrate is to ensure that the responsible person in relation to the Commonwealth DNA database system is notified of any extension given under this section.

23YDAA  Destruction of forensic material taken from offender after conviction quashed

                   The constable who obtained an authority under section 23XWG, 23XWK or 23XWO for the carrying out of a forensic procedure on an offender whose conviction is quashed after the making of the order must ensure that any forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the conviction is quashed.

23YDAB  Destruction of forensic material where related evidence is inadmissible

                   If a magistrate finds that evidence described in subsection 23XX(3) relating to a forensic procedure is inadmissible under section 23XX, the Commissioner must, as soon as practicable, ensure that any forensic material taken from the person by that forensic procedure is destroyed.

Division 8A—Commonwealth and State/Territory DNA database systems

23YDAC  Definitions

            (1)  In this Part:

Commonwealth agency means:

                     (a)  the Commonwealth; or

                     (b)  an authority of the Commonwealth.

Commonwealth DNA database system means a database (whether in computerised or other form and however described) that is managed by the Commonwealth and that contains:

                     (a)  the following indexes of DNA profiles (in so far as they relate to material taken or obtained by a Commonwealth agency and, in relation to a crime scene index, in so far as it also relates to material taken or obtained by a foreign law enforcement agency (within the meaning of the Australian Crime Commission Act 2002)):

                              (i)  a crime scene index;

                             (ii)  a missing persons index;

                            (iii)  an unknown deceased persons index;

                            (iv)  a serious offenders index;

                             (v)  a volunteers (unlimited purposes) index;

                            (vi)  a volunteers (limited purposes) index;

                           (vii)  a suspects index;

                            and, if the material is forensic material, information that may be used to identify the person from whose forensic material each DNA profile was derived; and

                     (b)  a statistical index (in so far as it relates to forensic material taken in accordance with this Part); and

                     (c)  any other index prescribed by the regulations for the purposes of this definition.

crime scene index means an index of DNA profiles derived from forensic material found:

                     (a)  at any place (whether within or outside Australia) where an offence (whether a prescribed offence or an offence under the law of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or

                    (aa)  at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been, committed; or

                   (ab)  at any place outside Australia where:

                              (i)  a crime within the jurisdiction of the ICC; or

                             (ii)  a War Crimes Tribunal offence;

                            was, or is reasonably suspected of having been, committed; or

                     (b)  on or within the body of the victim, or a person reasonably suspected of being a victim, of a prescribed offence; or

                     (c)  on anything worn or carried by the victim at the time when a prescribed offence was, or is reasonably suspected of having been, committed; or

                     (d)  on or within the body of any person, on any thing, or at any place, associated with the commission of a prescribed offence.

missing persons index means an index of DNA profiles derived from forensic material of:

                     (a)  persons who are missing; and

                     (b)  volunteers who are relatives by blood of missing persons.

National Criminal Investigation DNA Database or NCIDD means the database that is known as the National Criminal Investigation DNA Database and that is managed by the Commonwealth.

NCIDD: see National Criminal Investigation DNA Database.

serious offenders index means an index of DNA profiles derived from forensic material taken from:

                     (a)  serious offenders in accordance with Division 6A, or under a corresponding law of a participating jurisdiction; and

                     (b)  suspects who have been convicted of a prescribed offence or an offence under a corresponding law of a participating jurisdiction.

State/Territory DNA database system means a database (whether in computerised or other form and however described) held by, or on behalf of, a participating jurisdiction for the purposes of a corresponding law.

Note:          See also subsection (2).

statistical index means an index of information that:

                     (a)  is obtained from the analysis of forensic material taken from persons in accordance with this Part or under a corresponding law of a participating jurisdiction; and

                     (b)  has been compiled for statistical purposes; and

                     (c)  cannot be used to discover the identity of persons from whom the forensic material was taken.

suspects index means an index of DNA profiles derived from forensic material taken from suspects in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction.

unknown deceased persons index means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown.

volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken in accordance with Division 6B or under a corresponding law of a participating jurisdiction from volunteers who (or whose parents or guardians) have been informed that information obtained will be used only for a purpose specified to them under paragraph 23XWR(2)(ba).

volunteers (unlimited purposes) index means an index of DNA profiles derived from forensic material taken:

                     (a)  from volunteers who (or whose parents or guardians) have been informed under paragraph 23XWR(2)(c) that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under this Division, in accordance with Division 6B, or under a corresponding law of a participating jurisdiction; and

                     (b)  from deceased persons whose identity is known.

             (2)  For a participating jurisdiction, the database referred to in the definition of State/Territory DNA database system in subsection (1) may be that part of NCIDD that relates to that participating jurisdiction.

23YDACA  Integration of Commonwealth DNA database system and State/Territory DNA database systems

             (1)  The whole or a part of the Commonwealth DNA database system, or information obtained from the Commonwealth DNA database system, may be integrated (whether electronically or otherwise) with:

                     (a)  the whole or a part of one or more State/Territory DNA database systems; or

                     (b)  information obtained from one or more State/Territory DNA database systems;

to form part of NCIDD.

             (2)  A participating jurisdiction, or an authority of a participating jurisdiction, may access NCIDD to the extent that it consists of:

                     (a)  the whole or a part of the State/Territory DNA database system of the participating jurisdiction; or

                     (b)  information obtained from the State/Territory DNA database system of the participating jurisdiction;

but only if the participating jurisdiction, or the authority of the participating jurisdiction, is required or authorised by or under a law of the participating jurisdiction to access the State/Territory DNA database system of the participating jurisdiction.

             (3)  No part of a State/Territory DNA database system, and no information obtained from a State/Territory DNA database system, forms part of the Commonwealth DNA database system by reason only of any integration referred to in subsection (1).

             (4)  No part of the Commonwealth DNA database system, and no information obtained from the Commonwealth DNA database system, forms part of a State/Territory DNA database system by reason only of any integration referred to in subsection (1).

             (5)  The existence of the Commonwealth DNA database system or a State/Territory DNA database system is not affected by reason only of any integration referred to in subsection (1).

23YDAD  Supply of forensic material for purposes of DNA database

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct results in the forensic material taken from any person, and which is required to be destroyed, under this Part or under a corresponding law of a participating jurisdiction, to be supplied to another person; and

                     (c)  the person is reckless as to whether the forensic material is required to be destroyed and the supply of the material to the other person; and

                     (d)  the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  that conduct results in the supply of forensic material to any person and the person is reckless as to that result; and

                     (c)  the person is reckless as to whether the forensic material is not excluded forensic material; and

                     (d)  the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.

Penalty:  Imprisonment for 2 years.

             (3)  In this section:

excluded forensic material means forensic material:

                     (a)  found at a crime scene; or

                     (b)  taken from a suspect in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction; or

                     (c)  taken from a serious offender or a volunteer in accordance with Division 6A or 6B or under a corresponding law of a participating jurisdiction; or

                     (d)  taken from the body of a deceased person; or

                     (e)  that is from the body of a missing person; or

                      (f)  taken from a volunteer who is a relative by blood of a deceased or missing person.

23YDAE  Use of information on Commonwealth DNA database system or NCIDD

             (1)  A person commits an offence if the person accesses information stored on the Commonwealth DNA database system or NCIDD otherwise than in accordance with this section.

Penalty:  Imprisonment for 2 years.

             (2)  A person may access information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:

                     (a)  the purpose of forensic comparison permitted under section 23YDAF (permissible matching);

                     (b)  the purpose of making the information available, in accordance with the regulations, to the person to whom the information relates;

                     (c)  the purpose of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

                     (d)  the purpose of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;

                   (da)  the purpose of assisting a foreign country or international tribunal to decide whether to make a request;

                     (e)  the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;

                      (f)  the purpose of a coronial inquest or inquiry;

                     (g)  the purpose of an investigation of a complaint by the Information Commissioner of the Commonwealth or of a participating jurisdiction.

          (2A)  A person may access information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).

             (3)  This section does not apply to information that cannot be used to discover the identity of any person.

23YDAF  Permissible matching of DNA profiles

             (1)  A matching of a DNA profile on an index of the Commonwealth DNA database system specified in column 1 of the following table with a DNA profile on another index of the system specified in column 2, 3, 4, 5, 6, 7 or 8 of the table is not permitted by this Part if:

                     (a)  “no” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the index specified in column 1; or

                     (b)  “only if within purpose” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index specified in column 1 and the matching is carried out for a purpose other than a purpose for which the DNA profile placed on the volunteers (limited purposes) index specified in column 1 was so placed.

 

Profile to be matched	Is matching permitted?
Column 1	Column 2 Crime scene	Column 3 Suspects	Column 4 Volunteers (limited purposes)	Column 5 Volunteers (unlimited purposes)	Column 6 Serious offenders	Column 7 Missing persons	Column 8 Unknown deceased persons
1. crime scene	yes	yes	only if within purpose	yes	yes	yes	yes
2. suspects	yes	yes	only if within purpose	yes	yes	yes	yes
3. volunteers (limited purposes)	only if within purpose	only if within purpose	only if within purpose	only if within purpose	only if within purpose	only if within purpose	only if within purpose
4. volunteers (unlimited purposes)	yes	yes	only if within purpose	yes	yes	yes	yes
5. serious offenders	yes	yes	only if within purpose	yes	yes	yes	yes
6. missing persons	yes	yes	only if within purpose	yes	yes	yes	yes
7. unknown deceased persons	yes	yes	only if within purpose	yes	yes	yes	yes

             (2)  A person commits an offence if:

                     (a)  the person’s conduct causes the matching that is not permitted by this Part of a DNA profile on an index of the Commonwealth DNA database system with a DNA profile on the same or another index of the Commonwealth DNA database system; and

                     (b)  the person is reckless as to any such matching of profiles.

Penalty:  Imprisonment for 2 years.

             (3)  This section does not make it an offence for conduct to cause a matching that is not permitted by this Part if the matching is solely for the purposes of administering the Commonwealth DNA database system.

Note:          A defendant bears the evidential burden in relation to the matter in subsection (3)—see subsection 13.3(3) of the Criminal Code.

23YDAG  Recording, retention and removal of identifying information on Commonwealth DNA database system

             (1)  A person commits an offence if:

                     (a)  the person’s conduct causes any identifying information about a person obtained from forensic material taken from the person under this Part to be recorded or retained in the Commonwealth DNA database system at any time after this Part requires the forensic material to be destroyed; and

                     (b)  the person is reckless as to the recording or retention or whether the forensic material is required to be destroyed.

Penalty:  Imprisonment for 2 years.

             (2)  The responsible person commits an offence if he or she does not ensure that any identifying information, relating to a person from whose forensic material a DNA profile on the volunteers (unlimited purposes) index or volunteers (limited purposes) index of the Commonwealth DNA database system was derived, is removed from the system as soon as practicable after the end of the identifying period for the profile.

Penalty:  Imprisonment for 2 years.

Note:          See subsection 23WA(1) for responsible person.

             (3)  The responsible person commits an offence if he or she does not ensure that any identifying information relating to a DNA profile of an offender on the serious offenders index of the Commonwealth DNA database system is removed from the system as soon as practicable after becoming aware that the offender has been pardoned or acquitted of the offence concerned or if the conviction has been quashed.

Penalty:  Imprisonment for 2 years.

Note:          See subsection 23WA(1) for responsible person.

             (4)  In this section:

identifying information means any information that could be used:

                     (a)  to discover the identity of the person from whose forensic material the DNA profile was derived; or

                     (b)  to get information about an identifiable person.

identifying period for a DNA profile means the following:

                     (a)  except as provided by paragraphs (b) and (c), the period of 12 months after the DNA profile is placed on the Commonwealth DNA database system;

                     (b)  if the DNA profile is derived from forensic material taken from a volunteer—such period after the DNA profile is placed on the Commonwealth DNA database system as is agreed by the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer);

                     (c)  if the DNA profile is derived from forensic material taken from a deceased person (not being a person who was a volunteer) whose identity is known—such period as the Commissioner orders the responsible person to retain identifying information relating to the profile.

Division 9—General provisions relating to operation of this Part

23YDA  Interpreters

             (1)  Where:

                     (a)  a constable proposes to take an action listed in subsection (2); and

                     (b)  the constable believes on reasonable grounds that the suspect, offender or volunteer is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in the English language;

the constable must, before taking the proposed action, arrange for the presence of an interpreter, and defer taking the proposed action until the interpreter is present.

             (2)  The actions are as follows:

                     (a)  asking a suspect to consent to a forensic procedure (Division 3), asking an offender to consent to a forensic procedure (Division 6A) or asking a volunteer to consent to a forensic procedure (Division 6B);

                     (b)  ordering the carrying out of a non‑intimate forensic procedure on a suspect who is in custody (Division 4) or on an offender who is in custody (Division 6A);

                     (c)  applying to a magistrate for a final order or an interim order for the carrying out of a forensic procedure on a suspect (Division 5), applying to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender (Division 6A) or applying to a magistrate for an order under section 23XWU for the carrying out of a forensic procedure on a child or incapable person;

                     (d)  cautioning a suspect, offender or volunteer (Division 6);

                     (e)  carrying out, or arranging for the carrying out of, a forensic procedure on a suspect, offender or volunteer (Division 6);

                      (f)  giving a suspect, offender or volunteer an opportunity to view a video recording made under this Part (section 23YF).

23YE  Powers etc. of legal representatives and interview friends

             (1)  A request or objection that may be made by a suspect or offender under this Part may be made on the suspect’s or offender’s behalf by:

                     (a)  in any case—the suspect’s or offender’s legal representative; or

                     (b)  if the suspect or offender is a child or an incapable person—an interview friend of the suspect or offender; or

                     (c)  if the investigating constable believes on reasonable grounds that the suspect or offender is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect or offender.

             (2)  If:

                     (a)  a provision of this Part requires a suspect or offender to be informed of a matter; and

                     (b)  an interview friend or legal representative of the suspect is present when the suspect or offender is to be so informed; and

                     (c)  the suspect or offender is so informed in a language (including in sign language or braille) in which the suspect’s or offender’s interview friend or legal representative is not able to communicate with reasonable fluency;

the interview friend or legal representative must also be informed of the matter in a language in which the interview friend or legal representative is able to communicate with reasonable fluency.

23YF  Obligation of investigating constables relating to tape recordings

             (1)  If a tape recording is made as required by a provision of this Part, the investigating constable must ensure that:

                     (a)  if an audio recording only or a video recording only is made—the recording, or a copy of it, is made available to the suspect, offender or volunteer; and

                     (b)  if both an audio recording and a video recording are made:

                              (i)  the audio recording, or a copy of it, is made available to the suspect, offender or volunteer; and

                             (ii)  the suspect, offender or volunteer is given an opportunity to view the video recording; and

                     (c)  in any case, if a transcript of the tape recording is made—a copy of the transcript is made available to the suspect, offender or volunteer.

Note 1:       If a forensic procedure is carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to that country or tribunal: see section 23YQB.

Note 2:       If a forensic procedure is carried out as a result of a request by a foreign law enforcement agency, a copy of anything made may also be provided to the foreign law enforcement agency: see subsections 23YQD(3) and (4).

             (2)  Where an investigating constable is required to ensure that a suspect, offender or volunteer is given an opportunity to view a video recording made under this Part, the investigating constable must ensure that the same opportunity is given to:

                     (a)  in any case—the suspect’s, offender’s or volunteer’s legal representative; and

                     (b)  if the suspect, offender or volunteer is a child or an incapable person—an interview friend of the suspect, offender or volunteer; and

                     (c)  if the investigating constable believes on reasonable grounds that the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect, offender or volunteer.

             (3)  If section 23YD requires forensic material taken from a suspect, offender or volunteer by a forensic procedure to be destroyed, the investigating constable must ensure that any video recording of the carrying out of the forensic procedure is also destroyed.

23YG  Material required to be made available to suspect, offender or volunteer

             (1)  Material from samples, copies, or any other material, that must be made available to a suspect, offender or volunteer under this Part:

                     (a)  may be sent to the suspect, offender or volunteer at his or her last known address (if any), or to the suspect’s, offender’s or volunteer’s legal representative (if any) at his or her last known address; or

                     (b)  if there is no known address as mentioned in paragraph (a)—may be made available for collection by the suspect, offender or volunteer at the police station where the investigating constable was based at the time the forensic procedure was carried out.

             (2)  Subject to subsection (3), material of any kind that is required by this Part to be made available to a suspect, offender or volunteer must be made available in accordance with subsection (1):

                     (a)  within 14 days after the material comes into existence; or

                     (b)  if the material is requested by the suspect, offender or volunteer or the suspect’s, offender’s or volunteer’s interview friend or legal representative, within 14 days of the request.

             (3)  Subsection (2) does not apply to:

                     (a)  copies of records required to be made available under subsection 23XE(5); and

                     (b)  material required to be provided under section 23XU; and

                     (c)  copies of results of analysis and other information required to be provided under section 23XW.

23YH  No charge to be made for giving material etc. to suspects, offenders and volunteers

                   If a provision of this Part requires material of any kind to be given to a suspect, offender or volunteer, or an opportunity to view a video recording to be given to a suspect, offender or volunteer, the material or the opportunity to view the video must be given without charge.

23YI  Proof of belief or suspicion

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that a constable had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Part.

23YJ  Proof of impracticability

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that it was not practicable to do something required by this Part to be done if practicable.

23YJA  Proof that time should be disregarded

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that any particular time was covered by a provision of subsection 23WLA(2), 23XGB(2) or 23XGD(2).

23YK  Proof of voluntary waiver of certain rights

                   In any proceedings:

                     (a)  the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived a right as mentioned in subsection 23WG(3) or subsection 23XR(3); and

                     (b)  the burden is not discharged unless the court is satisfied on the balance of probabilities that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.

23YKA  Application of sections 23YI to 23YK

                   To avoid doubt, sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:

                     (a)  a foreign country; or

                     (b)  an international tribunal; or

                     (c)  a foreign law enforcement agency.

23YL  Liability for forensic procedures

                   No civil or criminal liability is incurred by any person (including a constable) who carries out, or helps to carry out, a forensic procedure under this Part in respect of anything properly and necessarily done in good faith by the person in carrying out or helping to carry out the forensic procedure if the person believed on reasonable grounds that:

                     (a)  informed consent had been given to the carrying out of the forensic procedure; or

                     (b)  the carrying out of the forensic procedure without informed consent had been duly ordered by a constable or magistrate under this Part.

Note:          This section does not provide any protection in respect of action taken maliciously.

23YM  Experts not obliged to carry out forensic procedures

                   Nothing in this Part requires a medical practitioner, nurse, dentist, dental technician or appropriately qualified person to carry out a forensic procedure.

23YN  Retention of electronic recordings

             (1)  A tape recording made by a constable in accordance with this Part that is no longer required for investigative or evidentiary purposes may be retained for such other purposes, and for such period, as the Commissioner directs.

             (2)  A recording that is retained under this section is to be stored so as to protect it against unauthorised access or use by any person.

23YO  Disclosure of information

             (1)  A person commits an offence if:

                     (a)  the person has access to any information stored on the Commonwealth DNA database system or NCIDD or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and

                     (b)  the person’s conduct causes the disclosure of information other than as provided by this section; and

                     (c)  the person is reckless as to any such disclosure.

Penalty:  Imprisonment for 2 years.

          (1A)  Paragraph (1)(a) does not apply to access to information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).

             (2)  A person may only disclose information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:

                     (a)  the purposes of forensic comparison in the course of a criminal investigation by a constable or other person prescribed by the regulations;

                     (b)  the purposes of making the information available, in accordance with the regulations, to the person to whom the information relates;

                     (c)  the purposes of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

                     (d)  the purposes of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;

                   (da)  the purposes of assisting a foreign country or international tribunal to decide whether to make a request;

                     (e)  the purposes of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;

                      (f)  the purpose of a coronial inquest or inquiry;

                     (g)  the purposes of an investigation by the Information Commissioner or the Ombudsman of the Commonwealth or of a participating jurisdiction.

             (3)  A person may only disclose information revealed by the carrying out of a forensic procedure as follows:

                     (a)  if the person is the suspect, offender or volunteer to whom the information relates;

                     (b)  if the information is already publicly available;

                     (c)  in accordance with any other provision of this Part;

                     (d)  in accordance with the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;

                     (e)  for the purposes of the investigation of any offence or offences generally;

                      (f)  for the purpose of a decision whether to institute proceedings for any offence;

                     (g)  for the purpose of proceedings for any offence;

                     (h)  for the purpose of a coronial inquest or inquiry;

                      (i)  for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;

                    (ia)  for the purpose of dealing with or investigating, under Part V or the Australian Federal Police Act 1979, an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;

                      (j)  for the purposes of the suspect’s, offender’s or volunteer’s medical treatment;

                     (k)  for the purpose of the medical treatment of the victim of an offence that there are reasonable grounds to believe was committed by the suspect;

                      (l)  if the suspect, offender or volunteer consents in writing to the disclosure.

             (4)  This section does not apply to information that cannot be used to discover the identity of any person.

23YP  Taking, retention and use of forensic material

Taking, retention and use authorised by laws of other jurisdictions

             (1)  Nothing in this Part affects the taking, retention or use of forensic material, or information obtained from forensic material, if the taking, retention or use of the material is authorised by or under a law of a State or a Territory.

             (2)  Forensic material, or information obtained from it, that was taken in accordance with a law of a State or a Territory may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.

Use and retention of forensic material taken before commencement of subsection

             (3)  Forensic material, or information obtained from it, that is taken in accordance with a law of a State or a Territory, as in force immediately before the commencement of this subsection, may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.

23YPA  Analysis of forensic material

                   The analysis for the Commonwealth of forensic material obtained as a result of the carrying out of a forensic procedure under this Part must be carried out in an accredited laboratory.

23YQ  Commissioner may delegate functions and powers

             (1)  The Commissioner of the Australian Federal Police may delegate all or any of his or her functions and powers under this Part to a constable or AFP appointee.

             (2)  In subsection (1), AFP appointee has the meaning it has in the Australian Federal Police Act 1979.

Division 9A—Carrying out forensic procedures at the request of a foreign country or international tribunal

Subdivision A—Requests by foreign countries or international tribunals

23YQA  Application of Subdivision

                   This Subdivision applies if:

                     (a)  a request is made by a foreign country or an international tribunal (the requesting entity) for a forensic procedure to be carried out on a person; and

                     (b)  the Attorney‑General authorises, under the authorising provision relating to the request, an authorised applicant to apply to a magistrate for the carrying out of the forensic procedure on the person.

23YQB  Providing evidence and material resulting from the forensic procedure

             (1)  Any forensic evidence resulting from the forensic procedure must be provided to the requesting entity in accordance with a direction described in subsection (3).

             (2)  Material (or a copy) relating to the request that was made available to, or viewed by, a person under subsection 23YF(1) (about recordings) may only be provided to the requesting entity in accordance with a direction described in subsection (3).

             (3)  The direction is one given by the Attorney‑General under the following provision:

                     (a)  section 28C of the Mutual Assistance in Criminal Matters Act 1987, if the request was made by a foreign country;

                     (b)  section 76B of the International Criminal Court Act 2002, if the request was made by the ICC;

                     (c)  section 32C of the International War Crimes Tribunals Act 1995, if the request was made by a War Crimes Tribunal.

             (4)  This section does not limit the directions that can be given under that provision.

Subdivision B—Requests by a foreign law enforcement agency

23YQC  Application of Subdivision

                   This Subdivision applies if a request is made by a foreign law enforcement agency that a forensic procedure be carried out on:

                     (a)  a suspect in relation to a foreign serious offence who has given informed consent to the forensic procedure; or

                     (b)  a volunteer.

Note:          This includes a request by an authority or person responsible to an international tribunal for investigating or prosecuting a crime or an offence within the jurisdiction of the tribunal.

23YQD  Providing forensic material etc. to a foreign law enforcement agency

             (1)  The Commissioner may provide forensic evidence to a foreign law enforcement agency if the Commissioner is satisfied that:

                     (a)  the foreign law enforcement agency has given appropriate undertakings in relation to the retention, use and destruction of the forensic evidence; and

                     (b)  it is appropriate, in all the circumstances of the case, to do so.

             (2)  If forensic evidence is to be provided to the foreign law enforcement agency, a copy of the tape recording or the written record mentioned in section 23WL (suspects) or 23XWS (volunteers) may also be provided to the foreign law enforcement agency.

             (3)  If an audio recording, a copy of it, or a copy of a transcript of a tape recording is made available to a suspect or volunteer (as required by subsection 23YF(1)), a copy of the audio recording or the transcript, or both, as the case may be, may also be provided to the foreign law enforcement agency.

             (4)  If:

                     (a)  a video recording or a copy of it is made available to a suspect or volunteer (as required by subsection 23YF(1)); or

                     (b)  both an audio recording and a video recording are made and the suspect or volunteer is given an opportunity to view the video recording (as required by subsection 23YF(1));

a copy of the video recording may also be provided to the foreign law enforcement agency.

Division 10—Operation of this Part and effect on other laws

23YQE  Part does not apply to persons under 10

                   This Part does not authorise the carrying out of a forensic procedure on a person who is under 10 years of age.

23YR  Relationship with Part IAA

                   This Part does not apply to the taking of hand prints, finger prints, foot prints or toe prints:

                     (a)  from a suspect who is under 18 years of age or is incapable of managing his or her affairs, if the suspect has been arrested and charged as mentioned in section 3ZJ; or

                     (b)  from a suspect who is at least 18 years of age and is capable of managing his or her affairs, if the suspect is in lawful custody in respect of an offence as mentioned in section 3ZJ.

Note:          Part IAA deals with the taking of identification material as defined in subsection 3ZJ(1) (which includes prints) from suspects described in paragraphs 23YR(a) and (b).

23YS  Relationship with Part IC

             (1)  Nothing in this Part is intended to limit the rights and protections provided by Part IC to the extent that the provisions of that Part can operate in circumstances covered by this Part.

             (2)  The rights and protections conferred by this Part are in addition to those conferred by Part IC but, to the extent (if any) that compliance with this Part results in compliance with Part IC, the requirements of Part IC are satisfied.

23YU  Application of other laws

             (1)  This Part is not intended to limit or exclude the operation of another law of the Commonwealth or of a law of a State or Territory relating to:

                     (a)  the carrying out of forensic procedures, including procedures not referred to in this Part; or

                    (aa)  without limiting paragraph (a), the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a person’s body; or

                     (b)  the taking of forensic samples, including samples not referred to in this Part; or

                     (c)  the taking of identification evidence; or

                     (d)  the carrying out of searches of the person; or

                     (e)  the retention or use of forensic material or information obtained as a result of activities described in paragraphs (a), (b), (c) and (d).

             (2)  To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

Division 11—Interjurisdictional enforcement

23YUA  Definitions

                   In this Part:

appropriate authority means:

                     (a)  in relation to a participating jurisdiction other than the Australian Capital Territory—an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Commissioner and any other authority prescribed by the regulations; or

                     (b)  in relation to the Australian Capital Territory—the Commissioner and any other authority prescribed by the regulations.

corresponding law means a law that:

                     (a)  relates to the carrying out of forensic procedures and DNA databases; and

                     (b)  either:

                              (i)  substantially corresponds to this Part; or

                             (ii)  is prescribed by the regulations for the purposes of this definition.

participating jurisdiction means a State or Territory in which there is a corresponding law in force.

responsible Minister of a participating jurisdiction means a Minister of that jurisdiction who is responsible for administration of a corresponding law.

23YUB  Registration of orders

             (1)  The Minister may enter into arrangements with the responsible Ministers of the participating jurisdictions for the establishment and maintenance, in one or more of those jurisdictions, of a register of orders for the carrying out of forensic procedures made under this Part or corresponding laws of participating jurisdictions.

          (1A)  The orders mentioned in subsection (1) do not include an order made in response to a request by a foreign country or international tribunal.

             (2)  An order is registered when a copy of the order (being a copy certified by the person who made it) is registered in accordance with the law of the participating jurisdiction in which the register is kept.

             (3)  An application for registration of an order, or for cancellation of registration of an order, may be made by an appropriate authority.

23YUC  Carrying out of registered orders

             (1)  A person is authorised to carry out an intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

          (1A)  A person is authorised to carry out a non‑intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 or a corresponding law of a participating jurisdiction, and not otherwise.

             (2)  A constable, or other person assisting a constable in accordance with this Part or a corresponding law of a participating jurisdiction, is not compelled by this Part, or an arrangement referred to in subsection 23YUB(1), to execute an order registered under such an arrangement.

23YUD  Database information

             (1)  The Minister may, on behalf of the Commonwealth, enter into arrangements with a responsible Minister of a participating jurisdiction under which:

                     (a)  information from the Commonwealth DNA database system is to be transmitted to the appropriate authority in the participating jurisdiction; and

                     (b)  information from the State/Territory DNA database system of the participating jurisdiction is to be transmitted to the Commissioner.

These arrangements may deal with keeping, and otherwise managing, such information. Subject to subsection (1B), these arrangements may also deal with using such information.

          (1A)  The ACC may, on behalf of the Commonwealth, enter into an arrangement with a participating jurisdiction in relation to:

                     (a)  transmission of information to or from the Commonwealth DNA database system, or any State/Territory DNA database system; or

                     (b)  keeping, and otherwise managing, such information; or

                     (c)  subject to subsection (1B), using such information.

       (1AA)  Subject to subsection (1B), an arrangement with a participating jurisdiction under subsection (1A) may deal with:

                     (a)  the ACC comparing information transmitted in accordance with that arrangement with other information on NCIDD; and

                     (b)  the ACC identifying matches that are found because of such comparisons and the ACC transmitting information arising from such matches to that participating jurisdiction.

       (1AB)  Subsection (1AA) does not limit subsection (1A).

          (1B)  Information that is transmitted under this section must not be used except for the purpose of:

                     (a)  the investigation of a matter relating to the participating jurisdiction, or proceedings in respect of that matter; or

                     (b)  the investigation of a matter relating to the Commonwealth, or proceedings in respect of that matter.

             (2)  Information that is transmitted under this section must not be recorded, or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after this Part or a corresponding law of a participating jurisdiction requires the forensic material to which it relates to be destroyed.

             (3)  In this section:

investigation of a matter means:

                     (a)  in relation to a participating jurisdiction:

                              (i)  an investigation of an offence against the law of that jurisdiction; or

                             (ii)  an investigation of a missing person; or

                            (iii)  an investigation for the purpose of identifying a deceased person; or

                     (b)  in relation to the Commonwealth:

                              (i)  an investigation of an offence against the law of the Commonwealth; or

                             (ii)  an investigation of a missing person; or

                            (iii)  an investigation for the purpose of identifying a deceased person.

23YUDA  Arrangements with prisons or other places of detention

                   The Commissioner may, on behalf of the Commonwealth, enter into an arrangement with the head (however described) of a prison or other place of detention in a State or Territory in relation to the carrying out of forensic procedures under this Part on offenders who are serving sentences of imprisonment in that prison or other place of detention.

Division 11A—Operation of this Part in relation to certain incidents

23YUE  Definitions

                   In this Division:

incident includes a series of incidents.

permitted purpose means either or both of the following:

                     (a)  the purpose of identifying an unidentified person who died in or as a result of an incident in relation to which this Division applies;

                     (b)  the purpose of conducting a criminal investigation in relation to such an incident.

23YUF  Application of this Division

             (1)  This Division applies in relation to the following incidents:

                     (a)  the bombings that occurred in Bali, Indonesia on 12 October 2002 (local time);

                     (b)  any incident that the Minister, by legislative instrument, determines to be an incident in relation to which this Division applies.

             (2)  Before making a determination under paragraph (1)(b), the Minister must be satisfied that:

                     (a)  if the determination would relate to an incident occurring wholly outside Australia and Norfolk Island—one or more Australian citizens or Australian residents have died in or as a result of the incident; and

                     (b)  it is appropriate in the circumstances for this Division to apply in relation to the incident.

          (2A)  The Minister must not make a determination under paragraph (1)(b) relating to an incident occurring wholly within Australia or Norfolk Island unless:

                     (a)  the Minister suspects on reasonable grounds that the incident involves the commission of:

                              (i)  an offence against a law of the Commonwealth; or

                             (ii)  a State offence that has a federal aspect; or

                            (iii)  an offence against a law of a Territory; or

                     (b)  the Minister suspects on reasonable grounds that victims of the incident are persons of a kind with respect to whom the Commonwealth Parliament has power to make laws; or

                     (c)  the Minister is satisfied that the incident is or has created a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.

          (2B)  Without limiting paragraph (2A)(b), the reference in that paragraph to persons of a kind with respect to whom the Commonwealth Parliament has power to make laws includes references to the following:

                     (a)  aliens;

                     (b)  persons receiving pensions, benefits or allowances from the Commonwealth;

                     (c)  members of the Australian Defence Force;

                     (d)  persons employed by, or holding an office in, the Commonwealth;

                     (e)  residents of a Territory.

23YUG  Use of information on DNA database systems

             (1)  Despite section 23YDAE, a person may access information stored on the Commonwealth DNA database system or NCIDD if:

                     (a)  the access is for the purpose of forensic comparison under a law of a State or Territory relating to forensic procedures and DNA databases; and

                     (b)  the forensic comparison is for a permitted purpose.

             (2)  Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the access is for the purpose of forensic comparison under this Part; and

                     (b)  the forensic comparison is for a permitted purpose.

             (3)  Despite section 23YDAE or any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if the access is for the purpose of disclosing that information under section 23YUI.

23YUH  Permissible matching of DNA profiles

             (1)  Despite section 23YDAF, a person may match a DNA profile on the unknown deceased persons index of the Commonwealth DNA database system with another DNA profile on that index if the matching is for a permitted purpose.

             (2)  Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may match a DNA profile on the unknown deceased persons index of a State/Territory DNA database system with another DNA profile on that index, or with another DNA profile on the unknown deceased persons index of the Commonwealth DNA database system, if the matching is for a permitted purpose.

23YUI  Disclosure of information

             (1)  Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the disclosure is to:

                              (i)  any law enforcement agency (within the meaning of the Australian Crime Commission Act 2002); or

                             (ii)  a foreign law enforcement agency (within the meaning of that Act); or

                            (iii)  the International Criminal Police Organisation; or

                            (iv)  any other agency or body of the Commonwealth, a State or a Territory, or of a foreign country, prescribed by the regulations; and

                     (b)  the information is relevant to the activities of that agency or body; and

                     (c)  the disclosure is for a permitted purpose.

             (2)  Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the information concerns the result of a match of an unknown deceased person’s DNA profile with a missing person’s DNA profile; and

                     (b)  the disclosure is made to a relative, guardian, spouse, de facto partner or friend of the deceased person.

23YUJ  This Division does not restrict operation of this Part

                   This Division does not limit the circumstances in which a person may:

                     (a)  access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system; or

                     (b)  match a DNA profile on an index of the Commonwealth DNA database system or a State/Territory DNA database system; or

                     (c)  disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

under this Part.

Note:          See section 23YU on the effect of this Part on other laws.

Division 11B—Concurrent operation of State and Territory laws

23YUL  Concurrent operation of State and Territory laws

                   The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1:       Subsection 3(1) defines State to include the Northern Territory.

Note 2:       Section 3AA has the effect that an offence against a law of the Australian Capital Territory is a State offence that has a federal aspect.

Part IE—Forfeiture of child abuse material

Division 1—Things this Part applies to

23ZA  Application

                   This Part applies to a thing (the forfeitable thing) that is:

                     (a)  child abuse material; or

                     (c)  any of the following that contains child abuse material:

                              (i)  a computer;

                             (ii)  a data storage device;

                            (iii)  another piece of electronic equipment.

Division 2—Forfeiture by operation of law after notice is given

23ZB  Forfeiture of material by operation of law

Application

             (1)  This section applies if a constable reasonably believes that the forfeitable thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence.

Power to give forfeiture notice

             (2)  The constable may give a notice (the forfeiture notice) described in subsection (3) to:

                     (a)  a person who owns the forfeitable thing (either alone or with other persons); or

                     (b)  if the constable is unable, after reasonable inquiry, to identify such a person:

                              (i)  the person who possesses the thing; or

                             (ii)  if the thing has been seized under a law of the Commonwealth, a State, a Territory or a foreign country—the person who would possess it apart from that seizure.

Content of forfeiture notice

             (3)  The forfeiture notice is a notice that:

                     (a)  identifies the forfeitable thing; and

                     (b)  states the constable’s belief that the thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence; and

                     (c)  states that the thing will be forfeited to the Commonwealth 30 days after the notice is given, unless any of the following persons object to the forfeiture by written notice given before the end of that period to the head of the police force that includes the constable:

                              (i)  a person who owns the thing (either alone or with other persons);

                             (ii)  a person who has a right to possess the thing; and

                     (d)  explains the circumstances in which, under section 23ZC, a person may be given a copy of parts of the thing, or of data contained in the thing, on request to the head of the police force made within 30 days after the notice is given; and

                     (e)  explains the effect of forfeiture of the thing; and

                      (f)  explains the circumstances in which compensation is payable in connection with forfeiture of the thing; and

                     (g)  requests a person claiming compensation for forfeiture of the thing to notify the head of the police force of the claim.

Giving copy of forfeiture notice to others affected

             (4)  If the constable gives the forfeiture notice to a person described in subsection (2), the constable may also give a copy of the notice to anyone whom the constable reasonably believes will be directly or indirectly affected by the proposed forfeiture of the forfeitable thing.

Effect of giving forfeiture notice

             (5)  If there is not an objection described in paragraph (3)(c), the forfeitable thing is forfeited to the Commonwealth (by force of this subsection) at the end of the period described in that paragraph.

             (6)  If there is an objection described in paragraph (3)(c) but the head of the police force that includes the constable considers that the forfeitable thing should be forfeited to the Commonwealth despite the objection:

                     (a)  the head of the police force must instruct the Director of Public Prosecutions to apply for an order under section 23ZD for the forfeiture of the thing; and

                     (b)  the Director must make the application.

Objection or lack of one does not affect prosecution

             (7)  Evidence of the fact that a person described in paragraph (3)(c) objected or did not object as described in that paragraph is not admissible against the person in a prosecution of the person for a Commonwealth child sex offence.

23ZC  Providing copies of innocuous parts of material to be forfeited

             (1)  This section applies if:

                     (a)  the forfeitable thing is identified in a forfeiture notice given by a constable; and

                     (b)  less than 30 days after the notice is given, a person who was given the notice or who would be directly or indirectly affected by the proposed forfeiture of the thing gives a written request to the head of the police force that includes the constable; and

                     (c)  the request is for the person to be given a copy of parts of the thing, or of data contained in the thing, that:

                              (i)  are specified in the request clearly enough to enable the parts or data to be identified readily; and

                             (ii)  are not child abuse material.

             (2)  The head of the police force must comply with the request if he or she is satisfied that it is reasonably practicable to do so.

             (3)  However, the head of the police force need not comply with the request if he or she reasonably believes:

                     (a)  that to do so might endanger the safety of anyone or prejudice an investigation or prosecution; or

                     (b)  that possession by the person of the copy could constitute an offence against a law of the Commonwealth, a State or a Territory.

             (4)  If:

                     (a)  the head of the police force complies with the request; and

                     (b)  a court convicts the person of a Commonwealth child sex offence and is satisfied on the balance of probabilities that the forfeitable thing is derived from, or was used in connection with, the commission of the offence;

the court may order the person to pay the Commonwealth, State or Territory whose police force incurred costs in complying with the request those costs.

Division 3—Forfeiture by court order on application

23ZD  Forfeiture of material by court order on application

Court to order forfeiture on application if offence committed

             (1)  If, on application by the Director of Public Prosecutions to a court of a State or Territory, the court is satisfied that a Commonwealth child sex offence has been committed or that a person is or has been convicted of a Commonwealth child sex offence (by the court or another court), the court must order the forfeiture to the Commonwealth of all the things that the court is satisfied:

                     (a)  are forfeitable things derived from, or used in connection with, the commission of the offence; and

                     (b)  have not already become property of the Commonwealth.

Note 1:       It does not matter whether the Director of Public Prosecutions makes the application on his or her own initiative or because of section 23ZB.

Note 2:       It does not matter whether the court is satisfied in the course of criminal proceedings or civil proceedings that the Commonwealth child sex offence has been committed.

Notice of application

             (2)  The Director of Public Prosecutions must give written notice of the application to anyone:

                     (a)  who claims to own, or have a right to possess, a thing covered by the application; or

                     (b)  whom the Director reasonably believes would be directly or indirectly affected by the proposed forfeiture.

Interim orders

             (3)  At any time after the application is made to the court, it may make any interim orders it considers appropriate (such as orders relating to the delivery or retention of things pending the court’s decision on the application, and orders relating to the making and provision of copies of things).

Circumstances that do not prevent court ordering forfeiture

             (4)  An order under subsection (1):

                     (a)  may be made even if a person entitled to be given notice of the application fails to appear at the hearing of the application; and

                     (b)  need not be based on a finding as to the commission of a particular Commonwealth child sex offence; and

                     (c)  can be based on a finding that some such offence was committed; and

                     (d)  need not be based on a finding that a particular person committed a Commonwealth child sex offence.

Court may order compensation for forfeiture

             (5)  The court may order the Commonwealth to pay a specified reasonable amount of compensation to a person who owns, has a right to possess or has other property in a thing whose forfeiture the court orders if the thing is a computer, data storage device or other electronic equipment and the court is satisfied that:

                     (a)  the person has appeared at the hearing of the application; and

                     (b)  the person did not commit, is not and has not been convicted (by the court or another court) of, and has not been found by another court in civil proceedings to have committed, the Commonwealth child sex offence; and

                     (c)  the person is not the subject of proceedings in another court relating to the Commonwealth child sex offence and has not been the subject of such proceedings in connection with which an appeal may still be lodged as of right; and

                     (d)  the person is not the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence.

Standard of proof for forfeiture and compensation orders

             (6)  The standard of proof for subsections (1) and (5) is the balance of probabilities.

Division 4—Provisions relating to forfeiture under this Part generally

23ZE  Effect of forfeiture under this Part

             (1)  This section applies if a thing is forfeited to the Commonwealth under this Part.

             (2)  When the thing is forfeited it becomes the property of the Commonwealth.

             (3)  A constable may, without warrant, seize the thing.

             (4)  The Commissioner may deal with the thing in any way he or she considers appropriate (including by destroying the thing).

             (5)  However, if the thing is in the custody of a constable who is a member of a police force of a State or Territory, the head of the police force may deal with the thing in any way he or she considers appropriate (including by destroying the thing).

             (6)  Subsections (3), (4) and (5) have effect despite section 9.

23ZF  Compensation for forfeiture of electronic equipment etc.

             (1)  This section applies to a person if:

                     (a)  a thing that is a computer, data storage device or other electronic equipment is forfeited under this Part; and

                     (b)  the person owned, had a right to possess or had other property in the thing immediately before the forfeiture.

             (2)  The Commonwealth is liable to pay the person a reasonable amount of compensation for the forfeiture.

             (3)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (4)  However, the court is not to determine an amount of compensation for the person while:

                     (a)  the person is the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence; or

                     (b)  the person is the subject of proceedings (other than those under subsection (3)) relating to a Commonwealth child sex offence from which the thing was allegedly derived or in connection with which the thing was allegedly used; or

                     (c)  an appeal may be lodged as of right in relation to proceedings covered by paragraph (b).

             (5)  Subsection (2) does not apply if the person is or has been convicted of, or found by a court in civil proceedings (including proceedings under subsection (3)) to have committed, a Commonwealth child sex offence to which the forfeiture relates.

23ZG  Delegation by head of police force

                   The head of a police force (including the Commissioner) may, by writing, delegate to a constable who is a member of the force all or any of the head’s powers, functions and duties under this Part.

Part IIA—Protection of public and other services

  

30J  Industrial disturbances, lock‑outs and strikes

             (1)  If at any time the Governor‑General is of opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States, he or she may make a Proclamation to that effect, which Proclamation shall be and remain in operation for the purposes of this section until it is revoked.

             (2)  Any person who, during the operation of such Proclamation, takes part in or continues, or incites to, urges, aids or encourages the taking part in, or continuance of, a lock‑out or strike:

                     (a)  in relation to employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States; or

                     (b)  in relation to employment in, or in connexion with, the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;

commits an offence, and shall be liable on conviction to imprisonment for any period not exceeding one year.

             (3)  For the purposes of this section:

employee includes any person whose usual occupation is as an employee.

employer includes any person whose usual occupation is as an employer.

lock‑out includes the closing of a place or part of a place of employment, if the closing is unreasonable, and the total or partial refusal of employers, acting in combination, to give work, if the refusal is unreasonable, or the total or partial suspension of work by an employer, if the suspension is unreasonable, with a view to compel his or her employees, or to aid another employer in compelling his or her employees, to accept any term or condition of employment.

strike includes the total or partial cessation of work by employees, acting in combination, if the cessation is unreasonable, as a means of enforcing compliance with demands made by them or by other employees on employers, and the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable, and also includes job control.

30K  Obstructing or hindering the performance of services

                   Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind to whomsoever directed, or, without reasonable cause or excuse, by boycott or threat of boycott of person or property:

                     (b)  compels or induces any person employed in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth to surrender or depart from his or her employment;

                     (c)  prevents any person from offering or accepting employment in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;

                     (d)  obstructs or hinders the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;

                     (e)  compels or induces any person employed in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States to surrender or depart from his or her employment; or

                      (f)  prevents any person from offering or accepting employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;

commits an offence.

Penalty:  Imprisonment for 1 year.

Part III—Offences relating to the administration of justice

Division 1—Preliminary

31  Judicial proceeding and tribunal definitions

                   In this Act:

federal judicial proceeding means:

                     (a)  a judicial proceeding in or before:

                              (i)  a federal court; or

                             (ii)  a court exercising federal jurisdiction; or

                            (iii)  a court of a Territory; or

                     (b)  a judicial proceeding before a body or person acting under a law of:

                              (i)  the Commonwealth; or

                             (ii)  a Territory.

judicial proceeding means (other than in section 3L):

                     (a)  a proceeding in or before a court; or

                     (b)  a proceeding:

                              (i)  before a body, or a person, acting under a law of the Commonwealth, of a State or of a Territory; and

                             (ii)  in which evidence may be taken on oath.

judicial tribunal means a body or person (other than a court) before whom a judicial proceeding is conducted.

Division 2—Judges and magistrates

34  Judge or magistrate acting oppressively or when interested

Excessive and unreasonable bail

             (1)  A person commits an offence if:

                     (a)  the person is a judge or magistrate; and

                     (b)  the judge or magistrate is required or authorised by law to admit a person accused of an offence to bail; and

                     (c)  the judge or magistrate requires excessive and unreasonable bail; and

                     (d)  the requirement is an abuse of the judge’s or magistrate’s office; and

                     (e)  the offence referred to in paragraph (b) is an offence against a law of the Commonwealth.

Penalty:  Imprisonment for 2 years.

             (2)  Subsection (1) does not apply if the judge or magistrate has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  Absolute liability applies to the paragraph (1)(e) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Acting when interested

             (4)  A person commits an offence if:

                     (a)  the person is a judge or magistrate; and

                     (b)  the judge or magistrate perversely exercises jurisdiction in a matter; and

                     (c)  the judge or magistrate has a personal interest in the matter; and

                     (d)  the jurisdiction is federal jurisdiction.

Penalty:  Imprisonment for 2 years.

             (5)  Absolute liability applies to the paragraph (4)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Division 3—Evidence and witnesses

35  Giving false testimony

             (1)  A person commits an offence if:

                     (a)  the person gives false testimony touching a matter; and

                     (b)  the person does so:

                              (i)  in a judicial proceeding; or

                             (ii)  with the intention of instituting a judicial proceeding; and

                     (c)  the matter is material in the judicial proceeding; and

                     (d)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (2)  Strict liability applies to the paragraph (1)(c) element of the offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (4)  For the purposes of this section, it is immaterial:

                     (a)  whether the testimony is given:

                              (i)  on oath or not on oath; or

                             (ii)  orally or in writing; or

                     (b)  whether the court or judicial tribunal to which the testimony is given:

                              (i)  is properly constituted; or

                             (ii)  is held in the proper place; or

                     (c)  whether the person who gave the testimony is a competent witness; or

                     (d)  whether the testimony is admissible.

36  Fabricating evidence

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  fabricates evidence; or

                             (ii)  makes use of fabricated evidence; and

                     (b)  the person does so with the intention of misleading a court or judicial tribunal in a judicial proceeding; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

36A  Intimidation of witnesses etc.

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person:

                              (i)  threatens, intimidates or restrains another person; or

                             (ii)  uses violence to, or inflicts an injury on, another person; or

                            (iii)  causes or procures violence, damage, loss or disadvantage to another person; or

                            (iv)  causes or procures the punishment of another person; and

                     (b)  the first person does so on account of the other person having appeared, or being about to appear, as a witness in a judicial proceeding; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

37  Corruption of witnesses

Agreements or understandings

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person:

                              (i)  gives, confers or procures any property, or benefit, of any kind to, upon or for another person; or

                             (ii)  promises or offers to give, to confer, to procure or to attempt to procure any property, or benefit, of any kind to, upon or for another person; or

                            (iii)  asks for, receives or obtains any property, or benefit, of any kind for himself or herself or another person; or

                            (iv)  agrees to receive or to obtain any property, or benefit, of any kind for himself or herself or another person; and

                     (b)  the first person does so upon an agreement or understanding that any person called, or to be called, as a witness in a judicial proceeding will:

                              (i)  give false testimony; or

                             (ii)  withhold true testimony; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Inducing false testimony

             (3)  A person commits an offence if:

                     (a)  the person does an act; and

                     (b)  the person does so with the intention of inducing a person called, or to be called, as a witness in a judicial proceeding:

                              (i)  to give false testimony; or

                             (ii)  to withhold true testimony; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (4)  Absolute liability applies to the paragraph (3)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

38  Deceiving witnesses

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person:

                              (i)  practises any fraud or deceit to a person called, or to be called, as a witness in a judicial proceeding; or

                             (ii)  makes or exhibits any false statement, representation, token or writing to a person called, or to be called, as a witness in a judicial proceeding; and

                     (b)  the first person does so with the intention of affecting the testimony of the other person; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 2 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

39  Destroying evidence

             (1)  A person commits an offence if:

                     (a)  the person knows that a book, document or thing of any kind is, or may be, required in evidence in a judicial proceeding; and

                     (b)  the person:

                              (i)  destroys the book, document or thing; or

                             (ii)  renders the book, document or thing illegible, undecipherable or incapable of identification; and

                     (c)  the person does so with the intention of preventing the book, document or thing from being used in evidence; and

                     (d)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

40  Preventing witnesses from attending Court

             (1)  A person (the first person) commits an offence if:

                     (a)  another person has been subpoenaed or summoned to attend as a witness in a judicial proceeding; and

                     (b)  the first person prevents the other person from attending as a witness, or from producing anything in evidence, pursuant to the subpoena or summons; and

                     (c)  the judicial proceeding is a federal judicial proceeding.

Penalty:  Imprisonment for 1 year.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Division 4—Perverting the course of justice

41  Conspiracy to bring false accusation

             (1)  A person commits an offence if:

                     (a)  the person conspires with another person:

                              (i)  to charge any person falsely with an offence; or

                             (ii)  to cause any person to be falsely charged with an offence; and

                     (b)  the offence referred to in paragraph (a) is an offence against a law of:

                              (i)  the Commonwealth; or

                             (ii)  a Territory.

Penalty:  Imprisonment for 10 years.

          (1A)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  For a person to be guilty of an offence against subsection (1):

                     (a)  the person must have entered into an agreement with one or more other persons; and

                     (b)  the person and at least one other party to the agreement must have intended that a person be charged falsely with an offence pursuant to the agreement; and

                     (c)  the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

             (3)  A person may be found guilty of an offence against subsection (1) even if:

                     (a)  charging a person falsely pursuant to the agreement is impossible; or

                     (b)  the only other party to the agreement is a body corporate; or

                     (c)  each other party to the agreement is a person who is not criminally responsible; or

                     (d)  subject to subsection (4), all other parties to the agreement have been acquitted of the offence.

             (4)  A person cannot be found guilty of an offence against subsection (1) if:

                     (a)  all other parties to the agreement have been acquitted of such an offence; and

                     (b)  a finding of guilt would be inconsistent with their acquittal.

             (5)  A person cannot be found guilty of an offence against subsection (1) if, before the commission of an overt act pursuant to the agreement, the person:

                     (a)  withdrew from the agreement; and

                     (b)  took all reasonable steps to prevent the false charging.

             (6)  A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

             (7)  Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

42  Conspiracy to defeat justice

             (1)  A person commits an offence if:

                     (a)  the person conspires with another person to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and

                     (b)  the judicial power is the judicial power of the Commonwealth.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  For a person to be guilty of an offence against subsection (1):

                     (a)  the person must have entered into an agreement with one or more other persons; and

                     (b)  the person and at least one other party to the agreement must have intended to obstruct, prevent, pervert or defeat the course of justice pursuant to the agreement; and

                     (c)  the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

             (4)  A person may be found guilty of an offence against subsection (1) even if:

                     (a)  obstructing, preventing, perverting or defeating the course of justice pursuant to the agreement is impossible; or

                     (b)  the only other party to the agreement is a body corporate; or

                     (c)  each other party to the agreement is a person who is not criminally responsible; or

                     (d)  subject to subsection (5), all other parties to the agreement have been acquitted of the offence.

             (5)  A person cannot be found guilty of an offence against subsection (1) if:

                     (a)  all other parties to the agreement have been acquitted of such an offence; and

                     (b)  a finding of guilt would be inconsistent with their acquittal.

             (6)  A person cannot be found guilty of an offence against subsection (1) if, before the commission of an overt act pursuant to the agreement, the person:

                     (a)  withdrew from the agreement; and

                     (b)  took all reasonable steps to prevent the obstruction, prevention, perversion or defeat.

             (7)  A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

             (8)  Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

43  Attempting to pervert justice

             (1)  A person commits an offence if:

                     (a)  the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and

                     (b)  the judicial power is the judicial power of the Commonwealth.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  For the person to be guilty of an offence against subsection (1), the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

             (4)  A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.

44  Compounding offences

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person:

                              (i)  asks for, receives or obtains any property, or benefit, of any kind for himself or herself or another person; or

                             (ii)  agrees to receive or to obtain any property, or benefit, of any kind for himself or herself or another person; and

                     (b)  the first person does so upon an agreement or understanding that the first person will:

                              (i)  compound or conceal an offence; or

                             (ii)  abstain from, discontinue or delay a prosecution for an offence; or

                            (iii)  withhold evidence of an offence; and

                     (c)  the offence referred to in paragraph (b) is an indictable offence against a law of:

                              (i)  the Commonwealth; or

                             (ii)  a Territory.

Penalty:  Imprisonment for 3 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

45  Inserting advertisements without authority of court

             (1)  A person commits an offence if:

                     (a)  the person inserts in the Gazette, or in a newspaper, an advertisement purporting to be published under the authority of a court; and

                     (b)  the person does so:

                              (i)  without authority; or

                             (ii)  knowing the advertisement to be false in any material particular; and

                     (c)  the advertisement purports to be published under the authority of:

                              (i)  a federal court; or

                             (ii)  a court exercising federal jurisdiction; or

                            (iii)  a court of a Territory.

Penalty:  Imprisonment for 2 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Division 5—Escape from criminal detention

45A  Criminal detention definitions

                   In this Act:

criminal detention: a person is in criminal detention if the person:

                     (a)  is arrested in respect of an offence; or

                     (b)  is in custody in respect of an offence; or

                     (c)  is detained because:

                              (i)  the person is unfit to be tried in respect of an offence; or

                             (ii)  the person has been acquitted of an offence because of mental illness at the time of the offence; or

                            (iii)  the person has been convicted of an offence and a court has ordered that the person be detained for the purposes of receiving treatment for a mental illness that contributed to the commission of the offence.

Example:    Paragraph (c) includes detention under:

(a)    Division 6 of Part IB (unfitness to be tried); or

(b)    Division 7 of Part IB or section 20BS (mental illness).

federal criminal detention means criminal detention in respect of an offence against a law of:

                     (a)  the Commonwealth; or

                     (b)  a Territory (other than the Australian Capital Territory).

46  Aiding prisoner to escape

             (1)  A person (the first person) commits an offence if:

                     (a)  another person (the prisoner) is in criminal detention; and

                     (b)  the first person aids the prisoner:

                              (i)  to escape from that detention; or

                             (ii)  to attempt to escape from that detention; and

                     (c)  the prisoner escapes, or attempts to escape, from that detention; and

                     (d)  the detention is lawful federal criminal detention.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  Subsection (1) does not apply if, before the escape or attempted escape, the first person:

                     (a)  terminates his or her aid to the prisoner; and

                     (b)  takes all reasonable steps to prevent the escape or attempted escape.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  The first person may be found guilty of the offence even if the prisoner has not been prosecuted for, or has not been found guilty of, an offence in relation to the escape or attempted escape.

46A  Aiding prisoner to escape—conveying thing into prison etc.

             (1)  A person (the first person) commits an offence if:

                     (a)  another person (the prisoner) is in criminal detention; and

                     (b)  the first person conveys a thing into a prison, lock‑up or other place of criminal detention; and

                     (c)  the first person does so with the intention of facilitating the escape of the prisoner from the prison, lock‑up or other place; and

                     (d)  the detention is lawful federal criminal detention.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

47  Escaping

             (1)  A person commits an offence if:

                     (a)  the person is in criminal detention; and

                     (b)  the person escapes from that detention; and

                     (c)  the detention is lawful federal criminal detention.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

47A  Rescuing a prisoner from criminal detention

             (1)  A person (the first person) commits an offence if:

                     (a)  another person (the prisoner) is in criminal detention; and

                     (b)  the first person rescues the prisoner from that detention by force; and

                     (c)  the detention is lawful federal criminal detention.

Penalty:  Imprisonment for 14 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

47B  Person unlawfully at large

             (1)  A person commits an offence if:

                     (a)  the person was in criminal detention in a prison, lock‑up or other place of criminal detention; and

                     (b)  the detention was lawful federal criminal detention; and

                     (c)  in accordance with a permission given under a law of a State or Territory (other than the Australian Capital Territory), the person leaves the prison, lock‑up or other place; and

                     (d)  the person refuses, or fails, to return to the prison, lock‑up or other place in accordance with that permission.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  Paragraph (1)(d) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

47C  Permitting escape

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person is:

                              (i)  an officer of a prison, lock‑up or other place of criminal detention; or

                             (ii)  a constable; or

                            (iii)  a Commonwealth officer; and

                     (b)  the first person is charged for the time being with the criminal detention of another person (the prisoner); and

                     (c)  the first person intentionally or negligently permits the prisoner to escape from the detention; and

                     (d)  the detention is lawful federal criminal detention.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

48  Harbouring etc. an escapee

             (1)  A person (the first person) commits an offence if:

                     (a)  the first person knows that another person (the escapee) has escaped from a place where the other person was held in criminal detention; and

                     (b)  the first person harbours, maintains or employs the escapee; and

                     (c)  the detention was lawful federal criminal detention.

Penalty:  Imprisonment for 5 years.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

48A  Sentence ceases to run while escaped prisoner at large

             (1)  A person who commits an offence against section 47 or 47B shall, upon being returned to lawful custody, undergo, in addition to any punishment imposed for that offence, the punishment that the person would have undergone if the person had not escaped.

             (2)  If a person who is undergoing punishment for an offence against a law of the Commonwealth or of a Territory commits an offence against a law of a State or Territory that corresponds to section 47 or 47B, the person is, upon being returned to lawful custody, to undergo (in addition to any punishment imposed for the corresponding offence and any other punishment that the person is required to undergo under the law of the State or Territory) the punishment that the person would have undergone for the first‑mentioned offence if the person had not escaped.

Division 6—Seized property

49  Removing property under seizure

             (1)  A person commits an offence if:

                     (a)  property has been attached, or taken, under the process or authority of a court; and

                     (b)  the court was:

                              (i)  a federal court; or

                             (ii)  exercising federal jurisdiction; or

                            (iii)  a court of a Territory; and

                     (c)  the person receives, removes, retains, conceals or disposes of the property; and

                     (d)  the person does so with the intention of hindering or defeating the attachment or process.

Penalty:  Imprisonment for 2 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

Part IV—Piracy

  

51  Interpretation

                   In this Part:

act of piracy means an act of violence, detention or depredation committed for private ends by the crew or passengers of a private ship or aircraft and directed:

                     (a)  if the act is done on the high seas or in the coastal sea of Australia—against another ship or aircraft or against persons or property on board another ship or aircraft; or

                     (b)  if the act is done in a place beyond the jurisdiction of any country—against a ship, aircraft, persons or property.

Australia includes the External Territories.

coastal sea of Australia means:

                     (a)  the territorial sea of Australia; and

                     (b)  the sea on the landward side of the territorial sea of Australia and not within the limits of a State or Territory;

and includes airspace over those seas.

high seas means seas that are beyond the territorial sea of Australia and of any foreign country and includes the airspace over those seas.

offence against this Part includes:

                     (a)  an offence against section 6 that relates to an offence against a provision of this Part; and

                     (b)  an offence against a provision of this Part that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; and

                     (c)  an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against a provision of this Part.

pirate‑controlled ship or aircraft means a private ship or aircraft which is under the control of persons that:

                     (a)  have used, are using or intend to use the ship or aircraft in the commission of acts of piracy; or

                     (b)  have seized control of the ship or aircraft by an act of piracy.

place beyond the jurisdiction of any country means a place, other than the high seas, that is not within the territorial jurisdiction of Australia or of any foreign country.

private ship or aircraft means a ship or aircraft that is not being operated for naval, military, customs or law enforcement purposes by Australia or by a foreign country, and includes a ship or aircraft that has been taken over by its crew or passengers.

ship means a vessel of any type not permanently attached to the sea‑bed, and includes any dynamically supported craft, submersible, or any other floating craft, other than a vessel that has been withdrawn from navigation or is laid up.

52  Piracy

                   A person must not perform an act of piracy.

Penalty:  Imprisonment for life.

53  Operating a pirate‑controlled ship or aircraft

             (1)  A person must not voluntarily participate in the operation of a pirate‑controlled ship or aircraft knowing that it is such a ship or aircraft.

Penalty:  Imprisonment for 15 years.

             (2)  This section applies to acts performed on the high seas, in places beyond the jurisdiction of any country or in Australia.

54  Seizure of pirate ships and aircraft etc.

             (1)  A member of the Defence Force or a member of the Australian Federal Police may seize:

                     (a)  a ship or aircraft that he or she reasonably believes to be a pirate‑controlled ship or aircraft; or

                     (b)  a thing on board such a ship or aircraft, being a thing that appears to be connected with the commission of an offence against this Part.

             (2)  A seizure may be effected:

                     (a)  in Australia; or

                     (b)  on the high seas; or

                     (c)  in a place beyond the jurisdiction of any country.

             (3)  The Supreme Court of a State or Territory may:

                     (a)  on the application by the custodian of, or a person with an interest in, a ship, aircraft or thing seized under this section, order that the ship, aircraft or thing be returned to its lawful owner; or

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