New South Wales: Crimes (Forensic Procedures) Act 2000 (NSW)

Crimes (Forensic Procedures) Act 2000 No 59 An Act to make provision with respect to the powers to carry out forensic procedures on certain persons and to make provision with respect to a DNA database system; to make a related amendment to the Justices Act 1902 and consequential amendments to the Crimes Act 1900; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crimes (Forensic Procedures) Act 2000. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Section 121 commences on the date of assent. 3 Interpretation (1) Definitions In this Act— Aboriginal legal aid organisation means an organisation that provides legal assistance to Aboriginal persons or Torres Strait Islanders, being an organisation prescribed by the regulations for the purposes of this definition. adult means a person of or above 18 years of age. appropriately qualified, in relation to a person carrying out a forensic procedure—see section 4A. authorised applicant for an order for the carrying out of a forensic procedure on a suspect means— (a) the police officer in charge of a police station, or (b) a custody manager within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, or (c) an investigating police officer in relation to an offence, or (d) the Director of Public Prosecutions. authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. child means a person who is at least 10 years of age but under 18 years of age. correctional centre medical officer, in relation to a correctional centre or other place of detention, means any person appointed or acting as medical officer for the correctional centre or other place of detention. corresponding law is defined in section 95. crime scene index is defined in section 90. destroy is explained in subsection (5). DNA database system is defined in section 90. excluded volunteer is defined in section 76A. exercise a function includes perform a duty. forensic material means— (a) samples, or (b) hand prints, finger prints, foot prints or toe prints, or (c) photographs, or (d) casts or impressions, taken from or of a person's body. forensic procedure means— (a) an intimate forensic procedure, or (b) a non-intimate forensic procedure, (c) (Repealed) but does not include— (d) any intrusion into a person's body cavities except the mouth, or (e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken. Note— Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person. function includes a power, authority or duty. incapable person means an adult who— (a) is incapable of understanding the general nature and effect of 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. inform is explained in subsection (4). informed consent in relation to— (a) a suspect—is defined in section 9, and (b) a serious indictable offender—is defined in section 67, and (b1) an untested former offender—is defined in section 75F, and (b2) an untested registrable person—is defined in section 75V, and (c) a volunteer or parent or guardian of a volunteer—is defined in section 77. interview friend is explained in section 4. intimate forensic procedure means any of the following— (a) an external examination of a person's private parts, (b) the carrying out on a person of an other-administered buccal swab, (c) the taking from a person of a sample of the person's blood, (d) the taking from a person of a sample of the person's pubic hair, (e) the taking from a person of a sample of any matter, by swab or washing, from the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person's private parts, (g) the taking from a person of a dental impression, (h) the taking of a photograph of the person's private parts, (i) the taking from a person of an impression or cast of a wound from the person's private parts. investigating police officer means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out. legal representative of a suspect means an Australian legal practitioner acting for the suspect. missing persons index is defined in section 90. non-intimate forensic procedure means any of the following— (a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing, (b) the carrying out on a person of a self-administered buccal swab, (c) the taking from a person of a sample of the person's hair, other than pubic hair, (d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails, (e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person's body, other than the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person's body, other than the person's private parts, (g) the taking from a person of the person's hand print, finger print, foot print or toe print, (h) the taking of a photograph of a part of a person's body, other than the person's private parts, (i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts, (j) the taking of measurement of a person's body or any part of a person's body (other than the person's private parts) whether or not involving the marking of the person's body. offender means— (a) a serious indictable offender, or (b) a prescribed offender. offenders index is defined in section 90. other-administered buccal swab means a buccal swab carried out by someone other than the person on whom it is carried out. parent of a child means a person who has parental responsibility for the child. parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. participating jurisdiction is defined in section 95. place of detention, in relation to a person the subject of an intensive correction order that is subject to a home detention condition under the Crimes (Sentencing Procedure) Act 1999, means the place at which the person resides pursuant to the order. Note— A home detention order is taken to be an intensive correction order that is subject to a home detention condition. See Part 29 of Schedule 2 to that Act. police station includes— (a) a police station of a State or Territory, and (b) a building that is occupied by members of the NSW Police Force and that is nominated by the Commissioner of Police for the purposes of this paragraph, and (c) a building occupied by the Australian Federal Police. prescribed offence means— (a) an indictable offence, or (b) any other offence under a law of the State prescribed by the regulations for the purposes of this paragraph. prescribed offender means a person who is convicted of a prescribed offence. private parts means a person's genital area, anal area or buttocks, and, in the case of a female or transgender person who identifies as a female, includes the person's breasts. 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 or under the corresponding provisions of a law of another Australian jurisdiction. recording includes audio recording and video recording. responsible person, in relation to the DNA database system, means the person declared by the regulations to be the person responsible for the care, control and management of the system. sample has a meaning affected by subsection (3). self-administered buccal swab means a buccal swab carried out by the person on whom it is carried out. senior police officer means a police officer of or above the rank of sergeant. serious indictable offence means— (a) an indictable offence under a law of the State or of a participating jurisdiction that is punishable by imprisonment for life or a maximum penalty of 5 or more years imprisonment, or (b) an indictable offence under a law of the State that is punishable by a maximum penalty of less than 5 years imprisonment, being an offence the elements constituting which (disregarding territorial considerations) are the same as an offence under a law of a participating jurisdiction that is punishable by a maximum of 5 or more years imprisonment. serious indictable offender means a person who has been convicted of a serious indictable offence. suspect means the following— (a) a person whom a police officer suspects on reasonable grounds has committed an offence, (b) a person charged with an offence, (c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person. (d) (Repealed) time out means— (a) the time (if any) that is reasonably required to convey a suspect from the place where the suspect presents himself or herself to an investigating police officer to the nearest premises where facilities for carrying out a forensic procedure in accordance with this Act are available to the investigating police officer, (b) any time that is reasonably spent waiting for an investigating police officer or appropriately qualified person who is to carry out the forensic procedure to arrive at the place where the procedure is to be carried out, (c) any time that is reasonably spent waiting for facilities or equipment that are needed to carry out the procedure to become available, (d) 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 an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Act, (e) any time during which carrying out the procedure is suspended or delayed to allow such an Australian 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, (f) any time during which carrying out the procedure is suspended or delayed to allow the suspect to consult with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person at the place where the procedure is to be carried out as provided by this Act, (g) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention, (h) any time during which carrying out the procedure is suspended or delayed to allow the suspect to recover from the effects of intoxication due to alcohol or another drug (or both), (i) any time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or receive refreshments or to give the suspect access to toilet and other facilities, (j) any time during which carrying out the procedure is suspended or delayed at the request of the suspect, (k) any time that is reasonably spent waiting for a senior police officer or a Magistrate or other authorised officer to make an order as provided by this Act. transgender person is defined in subsection (6). untested former offender is defined in section 75A. untested registrable person is defined in section 75P. volunteer is defined in section 76. volunteers (limited purposes) index is defined in section 90. volunteers (unlimited purposes) index is defined in section 90. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) (Repealed) (3) Taking samples For the purposes of this Act, a sample taken from a person includes a sample taken from the person that consists of matter from another person's body. (4) Informs For the purposes of this Act, 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. (5) Destroy forensic material For the purposes of this Act, a person who is required to destroy forensic material is required not only to destroy the material but also to ensure that any information that relates any DNA profile derived from that material to a person whose DNA it describes is removed from the DNA database system. (6) Transgender persons In this Act, 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 Act (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) Notes included in the text of this Act do not form part of this Act. 4 Interview friends (1) This section lists the people who may act as an interview friend of a suspect or serious indictable offender for the purposes of a provision of this Act referring to an interview friend. Different people may act as interview friends of a suspect or offender for the purposes of different provisions of this Act. (2) If the suspect or serious indictable offender is a child or an incapable person, the following people may act as interview friends— (a) a parent or guardian, or other person, chosen by, or acceptable to, the suspect or offender, (b) a legal representative of the suspect or offender, (c) if the suspect or offender identifies as an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a representative of an Aboriginal legal aid organisation or a person whose name is on the relevant list maintained under section 116 (1) who is chosen by, or acceptable to, the suspect or offender, (d) if none of the previously mentioned persons is available—a person who is not a police officer or in any way involved in the investigation of an offence in relation to which a forensic procedure is proposed to be carried out, or is carried out, on the suspect or offender. (3) Where the suspect or serious indictable offender identifies as an Aboriginal person or Torres Strait Islander, and is not covered by subsection (2), the following people may act as interview friends— (a) a relative or other person chosen by the suspect or offender, (b) an Australian legal practitioner acting for the suspect or offender, (c) if none of the previously mentioned persons is available—a representative of an Aboriginal legal aid organisation, or a person whose name is included in the relevant list maintained under section 116 (1). (4) A suspect or serious indictable offender who has a legal representative may also have an interview friend who is not the suspect's or offender's legal representative. 4A Appropriately qualified persons (1) A person is appropriately qualified to carry out a forensic procedure if— (a) the person has suitable professional qualifications or experience to carry out the forensic procedure, or (b) the Commissioner of Police authorises the person in writing to carry out the forensic procedure, or (c) the person is qualified under the regulations to carry out the forensic procedure. (2) An authorisation under subsection (1)(b) may be given in relation to— (a) a specified procedure or class of procedures, or (b) a specified person or class of persons. Part 2 Authority and time limits for forensic procedures on suspects: summary of rules 5 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's status Intimate forensic procedure Non-intimate forensic procedure 1 With informed consent under Part 3 With informed consent under Part 3 Adult not under arrest By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 2 With informed consent under Part 3 With informed consent under Part 3 Adult under arrest By order of a Magistrate or an authorised officer under Part 5 By order of a senior police officer under Part 4 3 By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 Incapable person (whether or not under arrest) 4 By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 Child at least 10 but under 18 (whether or not under arrest) 6 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 on a suspect 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 (Part 3) Procedure by order of a senior police officer (Part 4) Procedure by order of a Magistrate or an authorised officer (Part 5) 1 Not applicable Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 40) Child or an incapable person, not under arrest 2 Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 16) Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 40) Suspect, including person identifying as Aboriginal person or Torres Strait Islander (not a child or an incapable person), not under arrest 3 Not applicable Not applicable Procedure must be carried out not later than 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see Division 4 of Part 5) Child or an incapable person, under arrest 4 Suspect may be detained in accordance with Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, for 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see section 7 (3) and (4)) Suspect may be detained in accordance with Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, for 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see section 17 (3) and (4)) Procedure must be carried out not later than 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" Suspect, including person identifying as Aboriginal person or Torres Strait Islander (not a child or an incapable person), under arrest Part 3 Forensic procedures on suspect by consent 7 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 Part 6 and not otherwise. (2) This Part 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 Part does not authorise keeping a suspect under arrest, in order to carry out a forensic procedure, for more than 2 hours after the expiration of the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. (4) In working out any period of time for the purposes of subsection (3), any time out is to be disregarded. (5) Nothing in this Act or Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 prevents the carrying out of a forensic procedure, with the informed consent of the suspect, during the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operates to extend the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. 8 Police officer to ask whether suspect identifies as Aboriginal person or Torres Strait Islander Before asking a suspect to consent to a forensic procedure under this Part, a police officer must ask the suspect whether the suspect identifies as an Aboriginal person or Torres Strait Islander. 9 Informed consent to forensic procedures—general (1) This section applies where— (a) a police officer intends to ask a suspect to consent to a forensic procedure, and (b) the suspect does not identify as an Aboriginal person or Torres Strait Islander. (2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer— (a) asks the suspect to consent to the forensic procedure under section 11, and (b) personally or in writing, gives the suspect— (i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (i), (j) and (k), and (ii) a description of the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and (c) informs the suspect about the forensic procedure in accordance with section 13, and (d) gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the suspect's choice and, subject to subsection (3), to do so in private. (3) If the suspect is under arrest, the police officer need not allow the suspect to communicate, or attempt to communicate, with the Australian legal practitioner in private if the police officer 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. 10 Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders (1) This section applies where— (a) a police officer intends to ask a suspect to consent to a forensic procedure, and (b) the suspect identifies as an Aboriginal person or Torres Strait Islander. (2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer— (a) asks the suspect to consent to the forensic procedure under section 11, and (b) gives the suspect a written statement setting out— (i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (h), (i), (j) and (k), and (ii) the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and (c) informs the suspect about the forensic procedure in accordance with section 13, and (d) complies with the rest of this section. (3) The police officer 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. Note— Section 106 relates to proving a waiver under paragraph (b). (4) Before asking the suspect to consent to a forensic procedure, the police officer must— (a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure, and (b) notify such a representative accordingly. (5) The police officer is not required to comply with subsection (4) if he or she is aware that the suspect— (a) has arranged for a legal representative to be present, or (b) has expressly and voluntarily waived his or her right to have a legal representative present, while the suspect is being asked to consent to the forensic procedure. (6) After asking a suspect covered by subsection (3) (b) to consent to a forensic procedure, the police officer must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian 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 subsection (3) (b) to consent to a forensic procedure, the police officer 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 under arrest, the police officer need not allow the suspect to communicate, or attempt to communicate, with the Australian legal practitioner, or the suspect's interview friend or legal representative, in private if the police officer 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 police officer and the suspect if— (a) the interview friend unreasonably interferes with or obstructs the police officer in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 13, or (b) the police officer forms a belief based on reasonable grounds that the presence of the interview friend could be prejudicial to the investigation of an offence because the interview friend may be a co-offender of the suspect or may be involved in some other way, with the suspect, in the commission of the offence. (10) If an interview friend is excluded under subsection (9), a suspect may choose another person to act as his or her interview friend. If the suspect does not waive his or her right to have an interview friend present and does not choose another person as an interview friend, the police officer may arrange for any person who may act as an interview friend under section 4 to be present as an interview friend. 11 Conditions under which police officer may request consent to forensic procedure (1) A police officer may not ask a suspect to undergo a forensic procedure unless satisfied— (a) that section 8, and section 9 or 10, as the case requires, have been complied with, and (b) that the circumstances referred to in subsection (2) or (3) exist, and (c) that the suspect is neither a child nor an incapable person, and (d) that the request for consent is justified in all the circumstances. (2) In the case of an intimate forensic procedure— (a) the act or omission in respect of which the suspect is a suspect must constitute a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove— (i) that the suspect has committed the prescribed offence referred to in paragraph (a), or (ii) that the suspect has committed some other prescribed offence. (3) In the case of a non-intimate forensic procedure— (a) the act or omission in respect of which the suspect is a suspect must constitute an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove— (i) that the suspect has committed the offence referred to in paragraph (a), or (ii) that the suspect has committed some other offence. 12 (Repealed) 13 Matters that suspect must be informed of before giving consent (1) The police officer must (personally or in writing) 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 electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording as provided by section 100, (b) the purpose for which the forensic procedure is required, (c) the offence in relation to which the police officer 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 police officer or person, (g) if relevant, the matters specified in subsection (2), (h) if the suspect identifies as 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, (j) the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable), (k) if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect—that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions. (2) Suspect's right to have medical practitioner or dentist present during some forensic procedures In the case of— (a) an intimate forensic procedure, or (b) a non-intimate forensic procedure that involves the taking of an impression or cast of a wound from a part of the suspect's body, the police officer must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of procedure) of his or her choice be present while the procedure is being carried out. (3) Failure to consent to non-intimate forensic procedure—suspect under arrest If the suspect is under arrest and the forensic procedure is a non-intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, a senior police officer may order the carrying out of the forensic procedure under Part 4 if he or she is satisfied of the matters referred to in section 20. (4) Failure to consent to intimate forensic procedure—suspect under arrest If the suspect is under arrest in relation to a prescribed offence and the forensic procedure is an intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a Magistrate or other authorised officer for an order authorising the carrying out of the forensic procedure. (5) Failure to consent to intimate or non-intimate forensic procedure—suspect not under arrest If the suspect is not under arrest, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a Magistrate or other authorised officer for an order authorising the carrying out of the forensic procedure. (6), (7) (Repealed) 14 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— (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 senior police officer under Part 4 or a Magistrate or other authorised officer under Part 5. 15 Recording of giving information and suspect's responses (1) The police officer must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the suspect's responses (if any) are recorded by electronic means. (2) If the recording of the giving of the information and the suspect's responses (if any) by electronic means is not practicable— (a) an independent person who is not a police officer must be present while the information is given and while any responses are made, and (b) a police officer must make a written record of the information that is given and any responses that are made, and (c) the police officer by whom the record is made must ensure that a copy of the record is made available to the suspect. Note— Part 13 contains provisions about making copies of material (including copies of tapes) available to the suspect. (3) Subsection (2) (a) does not apply if the suspect expressly and voluntarily waives his or her right to have an independent person present, but such a person may nevertheless be present if the investigating police officer so directs. 16 Time for carrying out forensic procedure—suspect not under arrest (1) If a suspect who is not under arrest— (a) consents to a forensic procedure, and (b) presents himself or herself to an investigating police officer to undergo the procedure, the procedure must be carried out as quickly as reasonably possible but in any case within 2 hours after the suspect so presents himself or herself. (2) In working out any period of time for the purposes of subsection (1), any time out is to be disregarded. Part 4 Non-intimate forensic procedures on suspects by order of senior police officer 17 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 18. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. (2) This Part 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 Part does not authorise keeping a suspect under arrest, in order to carry out a forensic procedure, for more than 2 hours after the expiration of the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. (4) In working out any period of time for the purposes of subsection (3), any time out is to be disregarded. (5) Nothing in this Act or Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 prevents the carrying out of a forensic procedure, in accordance with a senior police officer's order under section 18, during the investigation period provided for by section 115 of that Act. 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 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. 18 Circumstances in which senior police officer may order non-intimate forensic procedure (1) A senior police officer may order the carrying out of a non-intimate forensic procedure on a suspect who is under arrest if— (a) the suspect has been asked under Part 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 20. (2) If the senior police officer needs to decide between taking a sample of the suspect's hair or the carrying out of a self-administered buccal swab, an order for the taking of a sample of hair may not be made unless, following inquiry by the police officer— (a) the suspect has indicated that he or she prefers the taking of a sample of hair, or (b) the suspect has failed to indicate that he or she will carry out a self-administered buccal swab. 19 (Repealed) 20 Matters to be considered by senior police officer before ordering non-intimate forensic procedure A senior police officer may not order the carrying out of a non-intimate forensic procedure under section 18 (1) unless satisfied— (a) that the suspect is under arrest, and (b) that there are reasonable grounds to believe that the suspect has committed an offence, and (c) that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (b), and (d) that the suspect is neither a child nor an incapable person, and (e) that the carrying out of such a procedure is justified in the circumstances. 21 Making and recording senior police officer's order (1) The senior police officer may make an order under section 18 in person or, if that is not practicable, by telephone, radio, telex, facsimile or other means of transmission. (2) If an order is made by radio or other form of oral communication, the senior police officer must ensure that— (a) the suspect or the suspect's legal representative, if any, and (b) the suspect's interview friend, if any, are given an opportunity to speak to the senior police officer. (3) If the order is made by telex, facsimile or other form of written communication, the senior police officer must ensure that— (a) the suspect or the suspect's legal representative, if any, and (b) the suspect's interview friend, if any, are given an opportunity to make a written submission to the senior police officer, or to speak to the senior police officer by telephone, radio or other form of oral communication. (4) The senior police officer must, at the time of, or as soon as practicable after, making an order under section 18, 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. (5) The senior police officer must ensure that a copy of the record is sent to or made available to the suspect as soon as practicable after the record is made. Part 5 Forensic procedures on suspects by order of Magistrate or other authorised officer Division 1 General 22 Forensic procedure may be carried out by order of Magistrate or other authorised officer A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised officer under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. 23 Circumstances in which Magistrate or other authorised officer may order forensic procedure An order may be made by a Magistrate under section 24, or by an authorised officer under section 32, for the carrying out of a forensic procedure on a suspect if— (a) the suspect is not under arrest and has not consented to the forensic procedure, or (b) the suspect is under arrest and has not consented to the forensic procedure, or (c) the suspect is a child or an incapable person. Division 2 Final orders 24 Final order for carrying out forensic procedure (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities— (a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. (2) In the case of an intimate forensic procedure— (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (3) In the case of a non-intimate forensic procedure— (a) there must be reasonable grounds to believe that the suspect has committed an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following— (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests. 25 (Repealed) 26 Application for order (1) An authorised applicant (but no other person) may apply to a Magistrate for an order under section 24 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, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24 (1), and (c) specify the type of forensic procedure sought to be carried out. (d) (Repealed) (3) If a Magistrate refuses an application for an order authorising the carrying out of a forensic procedure on a suspect, the authorised applicant (or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless he or she provides additional information that justifies the making of the further application. 27 Application and order for repeated forensic procedure (1) An authorised applicant (but no other person) may apply to a Magistrate for an order under this section authorising him or her to arrange the carrying out for a second or subsequent time of a forensic procedure on a suspect on whom a forensic procedure has already been carried out by order of a Magistrate under section 24. (2) The application for the order must— (a) be made in writing, and (b) specify the type of forensic procedure carried out and the grounds for authorising it to be carried out a second or subsequent time, and (c) be supported by evidence on oath or by affidavit. (3) A Magistrate may order the carrying out for a second or subsequent time of a forensic procedure on a suspect under this section if the Magistrate is satisfied that— (a) the forensic procedure or procedures already carried out on the suspect was authorised by an order under section 24 and was carried out in accordance with Part 6, and (b) the forensic material obtained as a result of the carrying out of that forensic procedure or those forensic procedures is insufficient for analysis, has been contaminated, has been lost or is for any other reason not available for analysis, and (c) the carrying out of the forensic procedure for a second or subsequent time is justified in all the circumstances. 28 Securing the presence of suspect at hearing—suspect under arrest (1) If the suspect has been arrested by a police officer (original arrest), the Magistrate may, on the application of another police officer, issue a warrant directing the person holding the suspect under original arrest to deliver the suspect into the custody of the other police officer (temporary custody) for the hearing of an application for an order under this Part. (2) The police officer given temporary custody must return the suspect to the place of original arrest— (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 under arrest under section 42. 29 Securing the presence of suspect at hearing—suspect not under arrest (1) If the suspect is not under arrest, the Magistrate may, on the application of a police officer— (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 the matters referred to in subsection (3). (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 the matters referred to in subsection (5). (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. 30 Procedure at hearing of application for order (1) An order may be made in the presence of the suspect concerned or, at the discretion of the Magistrate, ex parte. (2) A suspect who is a child or an incapable person, or who identifies as an Aboriginal person or Torres Strait Islander— (a) must have an interview friend present if the suspect is present, and (b) may be represented by a legal representative. (3) Subsection (2) (a) does not apply to a suspect who identifies as an Aboriginal person or Torres Strait Islander if the suspect expressly and voluntarily waives his or her right to have an interview friend present. (4) At the beginning of any hearing in relation to proceedings on an application for an order under this Division, the suspect, if present at the hearing, must be asked whether he or she identifies as an Aboriginal person or Torres Strait Islander. (5) Any other suspect (including a suspect covered by subsection (2)) may be represented by an Australian legal practitioner. (6) The suspect or his or her representative— (a) may cross-examine the applicant for the order, and (b) may, with the leave of the Magistrate, call or cross-examine any other witness, and (c) may address the Magistrate. (7) A Magistrate must not give leave under subsection (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. (8) Despite subsection (2), 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. 31 Making of order (1) If a Magistrate makes an order for the carrying out of a forensic procedure, the Magistrate must— (a) specify the forensic procedure authorised to be carried out, and (b) give reasons for making the order, and (c) ensure that a written record of the order is kept, and (d) order the suspect to attend for the carrying out of the forensic procedure, and (e) 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 and place at which the procedure is to be carried out. Division 3 Interim orders 32 Interim order for carrying out of a forensic procedure (1) An authorised officer 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) section 23 applies, and (b) the authorised officer 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 authorised officer is satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, as referred to in section 24 (1), when the application is finally determined. (2) An interim order may authorise the carrying out of an intimate forensic procedure on a suspect only if the person is a suspect in relation to a prescribed offence. (3) An interim order operates as provided by this Division until a Magistrate, at a hearing held under Division 2, confirms the interim order or disallows the interim order, whether or not the suspect consents to the carrying out of the forensic procedure after the interim order is made but before it is confirmed or disallowed. Note— Section 35 (2) requires that an interim order specify the intended date, time and place of the later hearing. (4) Division 2 applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 24. Accordingly, a Magistrate may make an order confirming the interim order only if the Magistrate is satisfied as referred to in section 24 (1). An order confirming the interim order is taken to be an order under section 24. 33 Application for interim order (1) An authorised applicant (but no other person) may, without bringing a suspect before an authorised officer and without obtaining an order under section 24, 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 seeking an interim order authorising the carrying out of an intimate forensic procedure on a suspect may be made only if the person is a suspect in relation to a prescribed offence. (3) An application for an interim order must— (a) if it is made in person—be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1), and (b) specify the type of forensic procedure sought to be carried out. (4) An application for an interim order must be made— (a) in person, or (b) if it is not practicable to make the application in person and there are facsimile facilities readily available—by facsimile, or (c) if it is not practicable to make the application in person and there are no facsimile facilities readily available—by telephone, radio, telex, email or other means of communication. (4A) An authorised officer must not issue an interim order on an application made by facsimile, telephone, radio, telex, email or other means of written communication unless the authorised officer is satisfied that the interim order is required urgently and that it is not practicable for the application to be made in person. (5) If the suspect (being a child or an incapable person, or being a person who identifies as an Aboriginal person or Torres Strait Islander) is in the presence of the authorised applicant when an application for an interim order is made— (a) the suspect's interview friend, or (b) the suspect's legal representative, must also be present if reasonably practicable. (6) At the beginning of any hearing in relation to proceedings on an application for an order under this Division, the suspect (if present) must be asked whether he or she identifies as an Aboriginal person or Torres Strait Islander. (7) If a suspect who is in the presence of the authorised applicant when an application for an interim order is made is not covered by subsection (5), the suspect's legal representative (if any) must also (if reasonably practicable) be in the presence of the authorised applicant. (8) Despite subsection (5), 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. (9) If an application is not made in person, the application must be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1) as soon as practicable after the making of the application and before any interim order made as a result of the application is confirmed or disallowed. 34 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 authorised officer must ensure that— (a) the suspect or the suspect's legal representative, if any, and (b) the suspect's interview friend, if any, are given an opportunity to speak to the authorised officer. (2) If the application is made by telex, facsimile or other form of written communication, the authorised officer must ensure that— (a) the suspect or the suspect's legal representative, if any, and (b) 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 authorised officer by telephone, radio or other form of oral communication. (3) Despite subsections (1) and (2), the suspect's interview friend may be excluded from the presence of the authorised officer if the interview friend unreasonably interferes with or obstructs the hearing of the application. 35 Making of interim order (1) An authorised officer who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, facsimile 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) An authorised officer may make such orders and give such directions in relation to an interim order as a Magistrate may make or give in relation to an order under section 24. 36 Records of application and interim order (1A) This section applies when an application for an interim order is made in person, by facsimile, by email or by other electronic means of written communication. (1) The applicant for an interim order must, at the time of applying for the interim order, make a record (the applicant's record) of— (a) the application, and (b) the grounds for seeking the order, (c)–(e) (Repealed) and sign the record. (2) The applicant must send a copy of the applicant's record to the authorised officer as soon as practicable after it is made. (3) The authorised officer must, at the time of, or as soon as practicable after, making an interim order, make a record (the authorised officer's record) of— (a), (b) (Repealed) (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 authorised officer must send a copy of the authorised officer's record to the applicant as soon as practicable after the record is made. (5) The applicant must ensure that a copy of the authorised officer'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 authorised officer's record.