CRIMINAL LAW (FORENSIC PROCEDURES) (MISCELLANEOUS) AMENDMENT BILL 2002

Short title

1. (1) This Act may be cited as the Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002.

(2) The Criminal Law (Forensic Procedures) Act 1998 is referred to in this Act as "the principal Act".

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Amendment of s. 3—Interpretation

3. Section 3 of the principal Act is amended—

(a)by striking out the definitions of "appropriate authority" and "appropriate representative" and substituting the following definitions:

"assimilation order" means an order under section 44;

"category 1 (consent) procedure"—see section 13A;

"category 2 (volunteers) procedure"—see section 13E;

"category 3 (suspects) procedure"—see section 14;

"category 4 (offenders) procedure"—see section 30;;

(b)by striking out the definition of "corresponding law" and substituting the following definitions:

"closest available next of kin" means—

(a)in relation to a child, the first in order of priority of the following persons who is not a protected person and is available at the time:

(i)a parent of the child;

(ii)a brother or sister of the child;

(iii)a guardian of the child; and

(b)in relation to any other person, the first in order of priority of the following persons who is not a protected person and is available at the time:

(i)the spouse of the person;

(ii)a son or daughter of the person;

(iii)a parent of the person;

(iv)a brother or sister of the person;

"corresponding law" means a law of the Commonwealth, another State, or a Territory that provides for carrying out forensic procedures and is prescribed by regulation for the purposes of this definition;;

(c)by inserting after the definition of "criminal offence" the following definition:

"DNA database system"—see section 46A;;

(d)by striking out the definition of "forensic procedure" and substituting the following definitions:

"forensic procedure" means a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of—

(a)the taking of prints of the hands, fingers, feet or toes; or

(b)an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person); or

(c)the taking of a sample of biological or other material from a person's body¹ (but not the taking of a detached hair from the person's clothing); or

(d)the taking of an impression or cast of a part of a person's body²;

^1.This would include, for example, taking a sample of the person's hair, a sample of the person's fingernails or toenails or material under the person's fingernails or toenails, a blood sample, a sample by buccal swab or a sample of saliva.

^2.This would include, for example, the taking of a dental impression or the taking of an impression or cast of a wound.

"guardian" means a person acting or appointed under any Act or law as the guardian of another;;

(e)by inserting in paragraph (b) of the definition of "intrusive forensic procedure" "(other than a procedure consisting of the taking of a sample by buccal swab)" after "mouth";

(f)by inserting after the definition of "non-intrusive forensic procedure" the following definition:

"offenders index"—see section 46A;;

(g)by inserting after the definition of "protected person" the following definition:

"retention order" means an order under section 43;;

(h)by inserting after the definition of "under suspicion" the following definitions:

"volunteers (limited purposes) index"—see section 46A;

"volunteers (unlimited purposes) index"—see section 46A.;

(i)by inserting after its present contents (now to be designated as subsection (1)) the following subsections:

(2) A reference in this Act to the closest available next of kin of a person means, where there are two or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of "closest available next of kin" in subsection (1), any one of those people¹.

^1.This means, for example, that where this Act requires the consent of the closest available next of kin of a person to the carrying out of a forensic procedure, the procedure may be authorised by the consent of any one of the closest available next of kin, even if the other closest available next of kin do not consent.

(3) If a provision of this Act or an order made under this Act requires the destruction of any forensic material, the forensic material will be taken to have been destroyed, for the purposes of that provision or order, if it is not possible to identify the person from whom the material was obtained or to whom the material relates.

Amendment of s. 5—Non-application of Act to certain procedures

4. Section 5 of the principal Act is amended by striking out from paragraph (a) "required under any other law to submit to a breath analysis or an alcotest" and substituting "where another law authorises the taking of the sample for the purpose of determining the concentration of alcohol present in the person's blood".

Amendment of s. 6—Application of this Act

5. Section 6 of the principal Act is amended by striking out subsection (2) and substituting the following subsection:

(2) Except for this Part, this Act does not apply in relation to a forensic procedure authorised under another law¹.

^1.See, for example, section 81(4)(a) of the Summary Offences Act 1953. Where a forensic procedure is authorised under that provision, Division 3 of this Part will be applicable to the procedure but this Act will not be otherwise relevant.

Repeal of s. 7

6. Section 7 of the principal Act is repealed.

Repeal of ss. 8 and 9

7. Sections 8 and 9 of the principal Act (and the divisional heading immediately preceding section 8) are repealed.

Substitution of s. 13

8. Section 13 of the principal Act is repealed and the following section is substituted:

Taking samples of hair

13. A sample of hair taken from a person in the course of a forensic procedure must not be used for the purpose of obtaining a DNA profile of that person unless the person has specifically requested that the DNA profile be obtained in this way.

Insertion of Parts 2A and 2B

9. The following Parts are inserted after Part 2 of the principal Act:

PART 2A

CATEGORY 1 (CONSENT) PROCEDURES

DIVISION 1—PRELIMINARY

Category 1 (consent) procedures

13A. (1) A forensic procedure authorised under this Part is a category 1 (consent) procedure.

(2) A forensic procedure may only be authorised under this Part if it is carried out in the following circumstances:

(a)the person on whom the procedure is carried out is not under suspicion; and

(b)if a DNA profile of the person is to be derived from forensic material obtained by carrying out the procedure—the DNA profile is not to be stored on the DNA database system.

Application of this Act to category 1 (consent) procedures

13B. This Act, apart from Parts 1 and 2, this Part and Part 6, does not apply in relation to category 1 (consent) procedures.

DIVISION 2—AUTHORISATION OF CATEGORY 1 (CONSENT)

PROCEDURES

Authority required for carrying out category 1 (consent) procedure

13C. (1) A forensic procedure is authorised under this Part if—

(a)the person on whom the procedure is to be carried out is competent to consent to the procedure and does so; or

(b)the person on whom the procedure is to be carried out is not competent to consent to the procedure but—

(i)if the person is a child—the closest available next of kin of the child consents; or

(ii)in any other case—the person's guardian consents or, if the person does not have a guardian, the closest available next of kin of the person consents; or

(c)a magistrate authorises the procedure under subsection (3).

(2) A person's consent to a forensic procedure under this Part is not to be presumed from absence of objection; hence a person is taken not to have consented to the procedure unless the person—

(a)expressly consents to the procedure orally or in writing; or

(b)gives some other unequivocal indication of consent.

(3) A magistrate may authorise the carrying out of a forensic procedure on a person who is not competent to consent if the magistrate is satisfied that—

(a)it is impracticable or inappropriate to obtain consent to the procedure from a person who might consent on the person's behalf—

(i)because of the difficulty of locating or contacting that person; or

(ii)because that person, or a person related to or associated with him or her, is under suspicion in relation to a criminal offence; and

(b)the carrying out of the procedure is justified in the circumstances of the case.

(4) On an application for an authorisation under subsection (3), the magistrate—

(a)is not bound by rules of evidence but may act on the basis of information the magistrate considers reasonably reliable in the circumstances; and

(b)may deal with the application in a way that appears appropriate in the circumstances and is not bound by procedural rules; and

(c)may, in a case of urgency, hear the application by telephone and give the authorisation by telephone or fax.

(5) A person is competent to consent to a forensic procedure under this Part if the person—

(a)is of or above the age of 16 years; and

(b)is not physically or mentally incapable of consenting to the procedure.

Category 1 (consent) procedure not to be carried out on person who is not competent to consent but objects to procedure

13D. (1) A category 1 (consent) procedure is not to be carried out and, if commenced, is not to be continued on a person who is not competent to consent to the procedure if the person objects to or resists the procedure.

(2) Before a category 1 (consent) procedure is carried out on a person who is not competent to consent to the procedure but appears capable of responding rationally to information, a police officer must explain to the person that the procedure will not be carried out if the person objects to or resists the procedure.

(3) However—

(a)if a category 1 (consent) procedure is commenced but not completed because of objection or resistance to the procedure, the admissibility of evidence obtained before the procedure was, or should have been, discontinued is not affected; and

(b)failure to give an explanation under subsection (2) does not affect the admissibility of evidence obtained as a result of the procedure; and

(c)this section does not apply if the person on whom the forensic procedure is (or is to be) carried out is under 10 years of age.

PART 2B

CATEGORY 2 (VOLUNTEERS) PROCEDURES

DIVISION 1—PRELIMINARY

Category 2 (volunteers) procedures

13E. (1) A forensic procedure authorised under this Part is a category 2 (volunteers) procedure.

(2) A forensic procedure may only be authorised under this Part if it is carried out in the following circumstances:

(a)the person on whom the procedure is carried out is not under suspicion; and

(b)a DNA profile of the person is to be derived from forensic material obtained by carrying out the procedure and is to be stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index of the DNA database system.

Authority required for carrying out category 2 (volunteers) procedure

13F. A forensic procedure is authorised under this Part if—

(a)the person on whom the procedure is to be carried out—

(i)is not a protected person; and

(ii)gives informed consent to the procedure; or

(b)the person on whom the procedure is to be carried out is a protected person but—

(i)if the person is a child—the closest available next of kin of the child gives informed consent to the procedure; or

(ii)in any other case—the person's guardian gives informed consent to the procedure or, if the person does not have a guardian, the closest available next of kin of the person gives informed consent to the procedure.

DIVISION 2—INFORMED CONSENT

Requirements for informed consent

13G. (1) Before a person gives informed consent to a forensic procedure under this Part, a police officer must—

(a)complete a written statement, in a form approved by the Attorney-General, explaining—

(i)the nature of the proposed forensic procedure and the person's right to refuse consent to the proposed procedure; and

(ii)the options, under this Act, relating to storage of a DNA profile of the person on the DNA database system and the person's right to refuse consent to such storage or to impose conditions; and

(iii)any other matters required by the Attorney-General; and

(b)read that statement to the person; and

(c)give the person a copy of the written statement.

(2) If a person whose informed consent to a forensic procedure is sought is not reasonably fluent in English, the statement required to be read to the person under subsection (1) must be read with the assistance of an interpreter.

(3) A person gives informed consent to a forensic procedure under this Part by—

(a)expressly consenting to the procedure orally or in writing; or

(b)giving some other unequivocal indication of consent.

(4) An audio or audiovisual record of—

(a)the statement read to the person in relation to the proposed forensic procedure; and

(b)the giving of informed consent by the person,

must be made at the request of the person and, subject to subsection (5), a copy of that record must be given to the person.

(5) A copy of an audiovisual record will not be provided unless the fee fixed by regulation is paid.

(6) Arrangements must be made, at the request of the person, for the playing of an audiovisual record at a reasonable time and place to be nominated by the Commissioner of Police.

DIVISION 3—PROTECTED PERSONS

Requirements for informed consent of guardian or next of kin

13H. (1) Before the guardian or closest available next of kin of a protected person gives informed consent to the carrying out of a forensic procedure on the protected person under this Part, a police officer must—

(a)complete a written statement, in a form approved by the Attorney-General, explaining—

(i)the nature of the proposed forensic procedure and the guardian or closest available next of kin's right to refuse consent to the proposed procedure; and

(ii)the options, under this Act, relating to storage of a DNA profile of the protected person on the DNA database system and the guardian or closest available next of kin's right to refuse consent to such storage or to impose conditions; and

(iii)any other matters required by the Attorney-General; and

(b)read that statement to the guardian or closest available next of kin; and

(c)give the guardian or closest available next of kin a copy of the written statement.

(2) If a guardian or closest available next of kin whose informed consent to a forensic procedure is sought is not reasonably fluent in English, the statement required to be read to the guardian or closest available next of kin under subsection (1) must be read with the assistance of an interpreter.

(3) A guardian or closest available next of kin of a protected person gives informed consent to the carrying out of a forensic procedure on the protected person under this Part by—

(a)expressly consenting to the procedure orally or in writing; or

(b)giving some other unequivocal indication of consent.

(4) An audio or audiovisual record of—

(a)the statement read to the guardian or closest available next of kin in relation to the proposed forensic procedure; and

(b)the giving of informed consent by the guardian or closest available next of kin,

must be made at the request of the guardian or closest available next of kin and, subject to subsection (5), a copy of that record must be given to the guardian or closest available next of kin.

(5) A copy of an audiovisual record will not be provided unless the fee fixed by regulation is paid.

(6) Arrangements must be made, at the request of the guardian or closest available next of kin, for the playing of an audiovisual record at a reasonable time and place to be nominated by the Commissioner of Police.

Category 2 (volunteers) procedure not to be carried out on protected person who objects to procedure

13I. (1) A category 2 (volunteers) procedure is not to be carried out and, if commenced, is not to be continued on a protected person if the person objects to or resists the procedure.

(2) Before a category 2 (volunteers) procedure is carried out on a protected person who appears capable of responding rationally to information, a police officer must explain to the person that the procedure will not be carried out if the person objects to or resists the procedure.

(3) However—

(a)if a category 2 (volunteers) procedure is commenced but not completed because of objection or resistance to the procedure, the admissibility of evidence obtained before the procedure was, or should have been, discontinued is not affected; and

(b)failure to give an explanation under subsection (2) does not affect the admissibility of evidence obtained as a result of the procedure; and

(c)this section does not apply if the person on whom the forensic procedure is (or is to be) carried out is under 10 years of age.

Substitution of heading

10. The heading to Part 3 of the principal Act is repealed and the following heading is substituted:

PART 3

CATEGORY 3 (SUSPECTS) PROCEDURES

Substitution of Divisions 1 and 2

11. Divisions 1 and 2 of Part 3 of the principal Act are repealed and the following Divisions are substituted:

DIVISION 1—PRELIMINARY

Category 3 (suspects) procedures

14. (1) A forensic procedure authorised under this Part is a category 3 (suspects) procedure.

(2) A forensic procedure may only be authorised under this Part if it is carried out in the following circumstances:

(a)the person on whom the procedure is carried out is under suspicion; and

(b)there are reasonable grounds to suspect that the forensic procedure may produce evidence of value to the investigation of the suspected offence.

Authority required for carrying out category 3 (suspects) procedure

15. A forensic procedure is authorised under this Part if—

(a)the person on whom the procedure is to be carried out—

(i)is not a protected person; and

(ii)gives informed consent to the procedure; or

(b)an order authorising the procedure is made under Division 3.

DIVISION 2—INFORMED CONSENT

Requirements for informed consent

16. (1) Before a person gives informed consent to a forensic procedure under this Part, a police officer must—

(a)complete a written statement, in a form approved by the Attorney-General, explaining—

(i)the nature of the suspected offence; and

(ii)the nature of the proposed forensic procedure; and

(iii)the person's right to refuse consent to the proposed procedure and the possible consequences if consent is refused; and

(iv)if a DNA profile of the person is to be derived from forensic material obtained by carrying out the procedure and is to be stored on the DNA database system—that, if the person consents to the forensic procedure, the DNA profile will be so stored and the purposes for which that DNA profile may be used; and

(v)that the forensic procedure may produce evidence that might be used against the person; and

(vi)any other matters required by the Attorney-General; and

(b)read that statement to the person; and

(c)give the person a copy of the written statement.

(3) If a person whose informed consent to a forensic procedure is sought expresses a desire to communicate with a legal practitioner and a legal practitioner of the person's choice is available to give advice to the person, the person must be allowed a reasonable opportunity to communicate with the legal practitioner before deciding whether to give informed consent.

(4) The person must be allowed to speak with the legal practitioner in private unless the police officer has reasonable grounds to suspect that the person may attempt to destroy or contaminate evidence.

(5) A person gives informed consent to a forensic procedure under this Part by—

(a)expressly consenting to the procedure orally or in writing; or

(b)giving some other unequivocal indication of consent.

(6) An audiovisual record (or, if that is not reasonably practicable, an audio record) of—

(a)the statement read to the person in relation to the proposed forensic procedure; and

(b)the giving of informed consent by the person,

must be made and, subject to subsection (7), a copy of that record must be provided to the person.

(7) A copy of an audiovisual record will not be provided unless the fee fixed by regulation is paid.

(8) If an audiovisual record is made of a person giving informed consent, arrangements must be made, at the request of the person, for the playing of the audiovisual record at a reasonable time and place to be nominated by the investigating police officer.

Amendment of heading

12. The heading to Division 3 of Part 3 of the principal Act is amended by inserting "UNDER THIS PART" after "PROCEDURES".

Amendment of s. 17—Classes of orders

13. Section 17 of the principal Act is amended by inserting "under this Part" after "procedures".

Amendment of s. 18—Order may be made by appropriate authority

14. Section 18 of the principal Act is amended—

(a)by striking out from subsection (2) "this Act" and substituting "this Part";

(b)by striking out subsection (3) and substituting the following subsection:

(3) For the purpose of proceedings for a final order under this Part—

(a)the Magistrates Court (in its Criminal Division) is an appropriate authority; and

(b)if the respondent is a child—the Youth Court is an appropriate authority.;

(c)by striking out from subsection (4) "this Act" and substituting "this Part".

Amendment of s. 19—Application for order authorising forensic procedure under this Part

15. Section 19 of the principal Act is amended—

(a)by inserting "under this Part" after "procedure";

(b)by inserting after paragraph (b) the following paragraph:

(ba)a police prosecutor; or.

Amendment of s. 21—Representation

16. Section 21 of the principal Act is amended by inserting in subsection (3)(b) "if there is no available person in the above category—" before "an advocate".

Amendment of s. 23—Making of interim order

17. Section 23 of the principal Act is amended—

(a)by inserting in subsection (1) "under this Part" after "procedure" (first occurring);

(b)by striking out paragraph (b) of subsection (2) and substituting the following paragraph:

(b)an interim order for carrying out—

(i)an intrusive forensic procedure; or

(ii)a forensic procedure that is to be carried out on the person for the purpose of obtaining a DNA profile of the person,

may only be made if the suspected offence is an indictable offence.;

(c)by striking out from subsection (3) "has been made" and substituting "is made, or is taken to be made,".

Amendment of s. 24—Respondent to be present at hearing of application

18. Section 24 of the principal Act is amended by striking out from subsection (2) "the Magistrates Court, the Court" and substituting "a court, the court".

Amendment of s. 26—Making of final order for carrying out forensic procedure

19. Section 26 of the principal Act is amended—

(a)by striking out from subsection (1) "for carrying out a forensic procedure" and substituting "authorising the carrying out of a forensic procedure under this Part";

(b)by striking out from subsection (2)(e) "consent" and substituting "to give informed consent";

(c)by striking out paragraph (b) of subsection (3) and substituting the following paragraph:

(b)a final order for carrying out—

(i)an intrusive forensic procedure; or

(ii)a forensic procedure that is to be carried out on the person for the purpose of obtaining a DNA profile of the person,

may only be made if the suspected offence is an indictable offence.

Amendment of s. 28—Action to be taken on making order

20. Section 28 of the principal Act is amended—

(a)by striking out from subsection (1) "final order for" and substituting "final order authorising";

(b)by striking out subsection (2) and substituting the following subsection:

(2) A copy of the record of the order must be given to the respondent as soon as practicable and, in the case of a final order other than a final order confirming an interim order, the copy must be given to the respondent before the forensic procedure authorised by the order is carried out.;

(c)by striking out from subsection (3) "for carrying out a forensic procedure" and substituting "authorising a forensic procedure under this Part";

(d)by striking out from subsection (3)(a) "a forensic" and substituting "the".

Substitution of Part 3 Divs. 8 and 9

21. Divisions 8 and 9 of Part 3 of the principal Act are repealed and the following Division and Part are substituted:

DIVISION 8—MISCELLANEOUS

Interim order becomes final on conviction, etc.

29. If—

(a)a forensic procedure is carried out on a person under an interim order; and

(b)before proceedings for a final order are determined, the person becomes a person to whom Part 3A applies,

a final order confirming the interim order will be taken to have been made.

PART 3A

CATEGORY 4 (OFFENDERS) PROCEDURES

DIVISION 1—PRELIMINARY

Category 4 (offenders) procedures

30. (1) A forensic procedure authorised under this Part is a category 4 (offenders) procedure.

(2) A forensic procedure may only be authorised under this Part if it is carried out in the following circumstances:

(a)the person on whom the procedure is carried out is not under suspicion; and

(b)the person on whom the procedure is carried out is a person to whom this Part applies; and

(c)if a DNA profile of the person is to be derived from forensic material obtained by carrying out the procedure—the DNA profile is to be stored on the offenders index of the DNA database system.

(3) A person is a person to whom this Part applies if, after the commencement of this section, the person—

(a)is serving a term of imprisonment or detention (other than home detention) in relation to an offence; or

(b)is being detained as a result of being declared liable to supervision by a court dealing with a charge of an offence; or

(c)is convicted of an indictable offence by a court; or

(d)is declared liable to supervision by a court dealing with a charge of an indictable offence.

(4) This section applies whether the relevant offence was committed before or after the commencement of this section.

Authority required for carrying out category 4 (offenders) procedure

31. A forensic procedure is authorised under this Part if—

(a)the person on whom the procedure is to be carried out—

(i)is not a protected person; and

(ii)gives informed consent to the procedure; or

(b)an order authorising the procedure is made under Division 3; or

(c)the person on whom the procedure is to be carried out—

(i)is serving a term of imprisonment or detention (other than home detention); or

(ii)is being detained as a result of being declared liable to supervision by a court dealing with a charge of an offence,

and the procedure consists only of the taking of fingerprints or the taking of a sample for DNA analysis in a way that appears least intrusive in the circumstances.

DIVISION 2—INFORMED CONSENT

Requirements for informed consent

31A. (1) Before a person gives informed consent to a forensic procedure under this Part, a police officer must—

(a)complete a written statement, in a form approved by the Attorney-General, explaining—

(i)the nature of the proposed forensic procedure; and

(ii)the person's right to refuse consent to the proposed procedure and the possible consequences if consent is refused; and

(iii)if a DNA profile of the person is to be derived from forensic material obtained by carrying out the procedure and is to be stored on the DNA database system—that, if the person consents to the forensic procedure, the DNA profile will be so stored and the purposes for which that DNA profile may be used; and

(iv)that the forensic procedure may produce evidence that might be used against the person; and

(v)any other matters required by the Attorney-General; and

(b)read that statement to the person; and

(c)give the person a copy of the written statement.

(5) A person to whom this Part applies gives informed consent to a forensic procedure under this Part by—

(a)expressly consenting to the procedure orally or in writing; or

(b)giving some other unequivocal indication of consent.

(6) An audiovisual record (or, if that is not reasonably practicable, an audio record) of—

(a)the statement read to the person in relation to the proposed forensic procedure; and

(b)the giving of informed consent by the person,

must be made and, subject to subsection (7), a copy of that record must be given to the person.

(7) A copy of an audiovisual record will not be provided unless the fee fixed by regulation is paid.

DIVISION 3—ORDERS AUTHORISING FORENSIC PROCEDURES UNDER

THIS PART

Application for order

31B. (1) A police officer, police prosecutor or the DPP may apply to an appropriate authority for an order authorising the carrying out of a forensic procedure on a person (the respondent) under this Part.

(2) Each of the following is an appropriate authority for the purpose of proceedings for an order authorising a forensic procedure under this Part:

(a)a court that gives a judgment bringing the respondent within the application of this Part;

(b)the Magistrates Court (in its Criminal Division);

(c)if the respondent is a child—the Youth Court.

(3) An application for an order under this Part—

(a)must be made in writing; and

(b)must state the nature of the forensic procedure for which the order is sought and the grounds for seeking the order.

(4) A copy of the application must be served on the respondent.

Respondent to be present at hearing

31C. (1) The respondent must be present at the hearing of an application for an order authorising a forensic procedure under this Part unless the appropriate authority hearing the application is satisfied that reasonable grounds exist for dispensing with this requirement.

(2) If the application is made to a court, the court may—

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

(b)issue a warrant to have the respondent arrested and brought before the court for the hearing of the application.

(3) However, a warrant for the arrest of the respondent may only be issued if—

(a)the arrest is necessary to ensure the attendance of the respondent at the hearing; or

(b)there are other substantial reasons justifying the issue of a warrant.

(4) A respondent arrested on a warrant issued under this section is eligible to apply for release on bail pending the hearing of the application as if the respondent were a person who is appearing or is to appear before a court as a witness in proceedings.

Procedure at hearing

31D. (1) A respondent may be represented by a legal practitioner at the hearing of an application for an order authorising a forensic procedure under this Part.

(2) A respondent who is a protected person must be represented by an appropriate representative at the hearing (and may also be represented by a legal practitioner).

(3) An appropriate representative may be—

(a)a relative or friend chosen by, or acceptable to, the protected person; or

(b)if there is no available person within the above category—an advocate for the protected person nominated by a government or private agency with responsibilities for the care of protected persons of the relevant class.

(4) The respondent must be given a reasonable opportunity to make representations to the appropriate authority hearing the application.

(5) In deciding whether to make an order authorising a forensic procedure on a person under this Part, the appropriate authority must take into account—

(a)the nature and seriousness of the offence for which the person has been dealt with by a court; and

(b)whether there is a likelihood that the person will reoffend, having regard to the character, antecedents, age or physical or mental condition of the person; and

(c)the extent to which the procedure may assist law enforcement.

(6) An order authorising a forensic procedure under this Part may include directions about—

(a)the time, place and manner in which the order is to be carried out; and

(b)any other incidental matter.

Action to be taken on making order

31E. (1) If an appropriate authority makes an order authorising a forensic procedure under this Part, the authority must—

(a)make a written record of the order and the reasons for the order; and

(b)inform the respondent that—

(i)reasonable force may be used to carry out the order; and

(ii)if the respondent obstructs or resists a person in connection with the carrying out of the order, evidence of that fact may be admissible in proceedings against the respondent.

(2) A copy of the record of the order must be given to the respondent as soon as practicable and, in any case, before the forensic procedure authorised by the order is carried out.

Repeal of s. 32

22. Section 32 of the principal Act is repealed.

Insertion of Part 4 Div. 1A

23. The following Division is inserted after section 34 of the principal Act:

DIVISION 1A—OBSTRUCTION

Obstruction

34A. A person must not intentionally obstruct or resist the carrying out of a category 3 (suspects) procedure or a category 4 (offenders) procedure if that procedure has been authorised otherwise than by consent under this Act¹.

Maximum penalty:Imprisonment for two years.

^1.That is, if the procedure has been authorised by order under Part 3 or Part 3A or is authorised under section 31(c).

Substitution of ss. 35 and 36

24. Sections 35 and 36 of the principal Act are repealed and the following section is substituted:

Use of force

35. (1) A person authorised under this Act to carry out a forensic procedure, or a person assisting such a person, may, if the procedure has been authorised otherwise than by consent¹, use reasonable force—

(a)to carry out the authorised forensic procedure and, if it was authorised by order, any incidental directions included in the order; and

(b)to protect evidence obtained from the forensic procedure.

(2) If an application for an interim order authorising the carrying out of a forensic procedure on a person under Part 3 has been or is about to be made, a police officer may use reasonable force to prevent the person from destroying or contaminating evidence until the result of the application is known and, if an interim order is made, until the procedure is actually carried out.

(3) If force is used to prevent a person from destroying or contaminating evidence before an application for an interim order is made, the investigating police officer must ensure that an application for an interim order is made as soon as reasonably practicable.

(4) Where this section authorises the use of force to detain a person, that action does not, by itself, constitute an arrest of the person.

^1.That is, if the procedure has been authorised by order under this Act or is authorised under section 31(c).

Amendment of s. 37—Right to have witness present

25. Section 37 of the principal Act is amended by inserting after subsection (2) the following subsection:

(2a) An appropriate representative may be—

(a)a relative or friend chosen by, or acceptable to, the protected person; or

(c)if there is no available person within either of the above categories—a person, who is not a police officer or person involved in the investigation of the suspected offence (if any), chosen by a police officer in charge of a police station or, where relevant, the investigating police officer.

Amendment of s. 38—Audiovisual record to be made

26. Section 38 of the principal Act is amended—

(a)by striking out from subsection (1) "A video" and substituting "An audiovisual";

(b)by striking out from subsection (2) "a video" (twice occurring) and substituting, in each case, "an audiovisual";

(c)by striking out from subsection (3) "video" and substituting "audiovisual";

(d)by striking out from subsection (3) "investigating police officer" and substituting "Commissioner of Police";

(e)by striking out from subsection (4) "a video" and substituting "an audiovisual";

(f)by striking out from subsection (5) "a video" and substituting "an audiovisual".

Insertion of Part 4 Div. 4A

27. The following Division is inserted after section 38 of the principal Act:

DIVISION 4A—MISCELLANEOUS

Exemption from liability

38A. No civil or criminal liability is incurred by a person who carries out, or assists in carrying out, a forensic procedure for an act or omission if—

(a)the person genuinely believes that the forensic procedure is authorised under this Act; and

(b)the act or omission is reasonable in the circumstances.

Substitution of heading

28. The heading to Division 5 of Part 4 of the principal Act is repealed and the following headings and section are substituted:

PART 4A

HOW FORENSIC MATERIAL IS TO BE DEALT WITH

DIVISION 1—ACCESS TO FORENSIC MATERIAL

Application of Division

38B. This Division only applies to category 3 (suspects) procedures and category 4 (offenders) procedures.

Amendment of s. 39—Person to be given sample of material for analysis

29. Section 39 of the principal Act is amended—

(a)by striking out from subsection (1) "the investigating police officer" and substituting "a police officer";

(b)by striking out from subsection (2) "the investigating police officer need not comply with subsection (1)" and substituting "subsection (1) need not be complied with";

(c)by striking out from subsection (3) "a dental impression or an impression or cast of a wound" and substituting "an impression or cast of a part of a person's body".

Amendment of s. 40—Access to results of analysis

30. Section 40 of the principal Act is amended by striking out from subsection (2)(a) "investigating police officer" and substituting "Commissioner of Police".

Amendment of s. 41—Access to photographs

31. Section 41 of the principal Act is amended by striking out from paragraph (a) "investigating police officer" and substituting "Commissioner of Police".

Insertion of heading

32. The following heading is inserted after section 41 of the principal Act:

DIVISION 2—ANALYSIS OF CERTAIN MATERIAL

Amendment of s. 42—Analysis of certain material

33. Section 42 of the principal Act is amended—

(a)by inserting in subsection (1)(b) ", or is taken to be made," after "is made";

(b)by inserting after subsection (2) the following subsection:

(3) If—

(a)a category 4 (offenders) procedure is carried out on a person in accordance with this Act; but

(b)the judgment of the court in the proceedings that brought the person within the application of Part 3A is liable to appeal,

forensic material obtained as a result of the procedure must not be analysed until the time for appeal has expired and, if an appeal is commenced, the forensic material must not be analysed unless the judgment is confirmed on appeal or the judgment, as varied or substituted by the appellate court, would bring the person within the application of Part 3A.

Substitution of Divisions

34. Sections 43 and 44 of the principal Act, and the Division headings appearing immediately above each of those sections, are repealed and the following Divisions are substituted:

DIVISION 3—RETENTION AND ASSIMILATION ORDERS

Court order for retention of forensic material obtained by carrying out category 2 (volunteers) procedure on protected person

43. (1) If—

(a)forensic material was obtained by carrying out a category 2 (volunteers) procedure on a protected person; and

(b)the person who gave informed consent to the procedure has requested destruction of the forensic material,

a magistrate may make an order authorising the retention of the forensic material for a period specified in the order.

(2) A magistrate may make an order under this section if satisfied that—

(a)the person who gave consent, or a person related to or associated with him or her, is under suspicion in relation to an indictable offence; and

(b)there are reasonable grounds to believe that the forensic material to which the application relates is of probative value in relation to the investigation of the offence; and

(c)the order is justified in all the circumstances.

(3) An application for an order under this section may be made by—

(a)a police officer in charge of a police station; or

(b)the investigating police officer; or

(c)a police prosecutor; or

(d)the DPP.

(4) An application for an order under this section—

(a)must be made in writing; and

(b)must state the nature of the suspected offence and the grounds for suspecting that the person who gave the consent, or a person related to or associated with him or her, has committed the offence; and

(c)must state the grounds for suspecting that the forensic material to which the application relates is of probative value in relation to the investigation of the offence.

(5) An application for an order under this section may be faxed to the magistrate who is to hear the application or, if it is not reasonably practicable to fax the application, the application may be read to the magistrate over the telephone (however, in such a case, a copy of the application must be provided to the magistrate as soon as practicable after the application is made).

(6) If the person who requested destruction of the forensic material to which the application relates (the respondent) can be located, a copy of the application must be served on the respondent.

(7) A respondent may be represented by a legal practitioner at the hearing of an application for an order under this section.

(8) If the respondent is present at the hearing, the respondent must be given a reasonable opportunity to make representations to the magistrate.

(9) If the magistrate hearing an application is satisfied that the respondent—

(a)could not be located to be served with a copy of the application; or

(b)has been served with a copy of the application but has failed to attend the hearing,

the magistrate may proceed to hear and determine the application in the absence of the respondent.

(10) An order under this section may include directions about any incidental matter.

(11) If an order is made under this section authorising the retention of forensic material for a specified period, a magistrate may, on application by a person referred to in subsection (3), extend or further extend the specified period.

Court order for forensic material obtained by category 2 (volunteers) procedure to be treated as if obtained by category 3 (suspects) procedure

44. (1) A magistrate may order that forensic material obtained from a person as a result of a category 2 (volunteers) procedure be treated, for the purposes of determining when the material is required to be destroyed and for the purposes of the DNA database system, as if it were material obtained as a result of a category 3 (suspects) procedure if satisfied that—

(a)there are reasonable grounds to suspect that the person has committed a criminal offence; and

(b)there are reasonable grounds to suspect that the forensic material to which the application relates may be of value to the investigation of the suspected offence.

(2) An application for an order under this section may be made by—

(a)a police officer in charge of a police station; or

(b)the investigating police officer; or

(c)a police prosecutor; or

(d)the DPP.

(3) An application for an order under this section—

(a)must be made in writing; and

(b)must state the reasons for seeking the order.

(4) An application for an order under this section may be faxed to the magistrate who is to hear the application or, if it is not reasonably practicable to fax the application, the application may be read to the magistrate over the telephone (however, in such a case, a copy of the application must be provided to the magistrate as soon as practicable after the application is made).

(5) If the respondent can be located, a copy of the application must be served on the respondent.

(6) A respondent may be represented by a legal practitioner at the hearing of an application for an order under this section.

(7) If the respondent is present at the hearing, the respondent must be given a reasonable opportunity to make representations to the magistrate.

(8) If the magistrate hearing an application is satisfied that the respondent—

(a)could not be located to be served with a copy of the application; or

(b)has been served with a copy of the application but has failed to attend the hearing,

the magistrate may proceed to hear and determine the application in the absence of the respondent.

(9) For the purposes of this section, the respondent to an application relating to forensic material is—

(a)if the person from whom the forensic material was obtained is a protected person—

(i)if the person is a child—the closest available next of kin of the child; or

(ii)if the person is not a child—the person's guardian or, if the person does not have a guardian, the closest available next of kin of the person; or

(b)in any other case—the person from whom the forensic material was obtained.

DIVISION 4—DESTRUCTION OF FORENSIC MATERIAL

No destruction required if decision may be appealed

44A. Material need not be destroyed under this Division on the basis of a judicial decision until all rights of appeal from the decision are exhausted.

Destruction of forensic material obtained by carrying out category 2 (volunteers) procedures

44B. (1) The Commissioner of Police must ensure that relevant forensic material obtained from a person by carrying out a category 2 (volunteers) procedure is destroyed—

(a)within 14 days after receiving a request for destruction of the material from the person who gave informed consent to the procedure; or

(b)at the time (if any) specified by the person in giving informed consent to the procedure; or

(c)if a retention order has been made in relation to the forensic material—at the time directed in the order.

(2) A request for destruction of relevant forensic material must be in writing.

(3) A person who, at the time at which a category 2 (volunteers) procedure was authorised, was a protected person because he or she was a child, may, at any time after reaching the age of 18 years, request the destruction of relevant forensic material under this section as if he or she had given informed consent to the procedure.

(4) If, within 14 days of receiving a request for destruction of relevant forensic material, an application is made for a retention order or an assimilation order that relates to the material, the Commissioner of Police may postpone destruction of the material until that application is determined (but, if the application is refused by the Court, the Commissioner of Police must ensure that the material is destroyed as soon as practicable after that refusal).

(5) If relevant forensic material obtained by carrying out a forensic procedure is destroyed in accordance with this section, the Commissioner of Police must ensure that reasonable steps are taken, within 14 days of the destruction of the material, to give written notice of that fact to the person who gave informed consent to the procedure.

(6) In this section—

"relevant forensic material", in relation to a person, means forensic material that was obtained as a result of a forensic procedure carried out on that person but does not include forensic material that consists only of biological material from a different person, or the results of analysis of such material.

Destruction of forensic material obtained by carrying out category 3 (suspects) procedures

44C. (1) The Commissioner of Police must ensure that forensic material obtained from a person by carrying out a category 3 (suspects) procedure is destroyed (as soon as practicable) if—

(a)the material is obtained under an interim order and the appropriate authority decides not to confirm the order; or

(b)proceedings for an offence—

(i)are not commenced against the person within two years after the material is obtained; or

(ii)are commenced against the person within two years after the material is obtained, but—

(A)the proceedings are discontinued; or

(B)the person is not, as a result of the proceedings, a person to whom Part 3A applies.

(2) However—

(a)the Magistrates Court may, if satisfied that special reasons exist for doing so, extend (or further extend) the period of two years referred to in subsection (1)(b)(i) on application by a police officer or the DPP; and

(b)material need not be destroyed under subsection (1)(b)(ii) if there are other proceedings pending against the person.

(3) If this section applies to forensic material as a result of an assimilation order being made, the forensic material will, for the purposes of subsection (1)(b), be taken to have been obtained on the day on which the order was made.

(4) If relevant forensic material is destroyed in accordance with this section, the Commissioner of Police must ensure that reasonable steps are taken, within 14 days of the destruction of the material, to give written notice of that fact to the person from whom the material was obtained.

Destruction of forensic material obtained by carrying out category 4 (offenders) procedures

44D. (1) The Commissioner of Police must ensure that forensic material obtained from a person by carrying out a category 4 (offenders) procedure is destroyed (as soon as practicable) if—

(a)Part 3A applied to the person because he or she had been dealt with by a court on a charge of an offence; and

(b)the person is subsequently pardoned or acquitted of the offence or a conviction recorded against the person in relation to the offence is subsequently quashed.

(2) If relevant forensic material is destroyed in accordance with this section, the Commissioner of Police must ensure that reasonable steps are taken, within 14 days of the destruction of the material, to give written notice of that fact to the person from whom the material was obtained.

Amendment of s. 45—Effect of non-compliance on admissibility of evidence

35. Section 45 of the principal Act is amended by striking out subsection (1) and substituting the following subsection:

(1) If a police officer or other person with responsibilities under this Act (other than a person acting as an appropriate representative of a protected person under this Act) contravenes a requirement of this Act in relation to—

(a)a forensic procedure; or

(b)forensic material obtained from a forensic procedure; or

(c)a DNA profile derived from such forensic material,

evidence obtained as a result of the forensic procedure is not admissible in evidence against the person on whom the procedure was carried out unless—

(d)the person does not object to the admission of the evidence; or

(e)the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention.

Amendment of s. 46—Admissibility of evidence of denial of consent, obstruction, etc.

36. Section 46 of the principal Act is amended—

(a)by inserting in subsection (1) "give informed" after "failed to";

(b)by striking out from subsection (2) "an appropriate authority" and substituting "order under this Act".

Insertion of Part

37. The following Part is inserted after Part 5 of the principal Act:

PART 5A

THE DNA DATABASE SYSTEM

Interpretation

46A. In this Part—

"crime scene index" means an index of DNA profiles derived from biological material found—

(a)at any place (whether within or outside Australia) where a prescribed 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;

"DNA database system" means a database (whether in computerised or other form and however described) containing—

(a)the following indexes of DNA profiles and information that may be used to identify the person from whose biological material each DNA profile was derived:

(i)a crime scene index;

(ii)a missing persons index;

(iii)an unknown deceased persons index;

(iv)an offenders index;

(v)a volunteers (unlimited purposes) index;

(vi)a volunteers (limited purposes) index;

(vii)a suspects index; and

(b)a statistical index; and

(c)any other index prescribed by the regulations;

"missing persons index" means an index of DNA profiles derived from biological material of persons who are missing;

"offenders index" means an index of DNA profiles derived from forensic material obtained from persons—

(a)by carrying out forensic procedures authorised under Part 3, or a corresponding law, if the persons have become persons to whom Part 3A applies; and

(b)by carrying out forensic procedures authorised under Part 3A or a corresponding law;

"prescribed offence" means—

(a)an indictable offence; or

(b)an offence under the law of a jurisdiction in which a corresponding law is in force for which the maximum penalty is, or includes, imprisonment for two years or more or for an indefinite term;

"statistical index" means an index of information that—

(a)has been derived from the analysis of biological material obtained from persons by carrying out forensic procedures authorised under this Act, or a corresponding law, or otherwise; and

(b)has been compiled for statistical purposes; and

(c)cannot be used to discover the identity of persons from whom the biological material was obtained;

"suspects index" means an index of DNA profiles derived from forensic material obtained from persons—

(a)by carrying out forensic procedures authorised under Part 3, or a corresponding law; and

(b)by carrying out forensic procedures authorised under Part 2B if an assimilation order has been made in relation to the material or a court has ordered, in accordance with a corresponding law, that the forensic material be treated as if it were forensic material obtained from a person under suspicion;

"unknown deceased persons index" means an index of DNA profiles derived from biological material obtained from deceased persons whose identities are unknown;

"volunteers (limited purposes) index" means an index of DNA profiles derived from forensic material obtained from persons by carrying out forensic procedures authorised under Part 2B, or a corresponding law, where the person giving informed consent to the forensic procedure has specifically consented to the information being stored on this index and being used for specified purposes;

"volunteers (unlimited purposes) index" means an index of DNA profiles derived from forensic material obtained—

(a)from persons by carrying out forensic procedures authorised under Part 2B, or a corresponding law, where the person giving informed consent to the forensic procedure has specifically consented to the information being stored on this index and being used for the purposes of a criminal investigation or any other purposes for which the DNA database system may be used under this Part; and

(b)from deceased persons whose identity is known.

DNA database system

46B. (1) The Commissioner of Police may maintain a DNA database system.

(2) The Minister may—

(a)enter into an arrangement with the Minister responsible for the administration of a corresponding law, providing for the exchange of information recorded in the DNA database system kept under this section and a database kept under the corresponding law; and

(b)enter into an arrangement with the Minister responsible for the administration of a corresponding law of the Commonwealth, providing for the exchange of information recorded in the DNA database system kept under this section and a database kept by the Commonwealth that has been compiled from information recorded in the DNA database system kept under this section and databases kept under corresponding laws.

(3) A person who stores a DNA profile derived from forensic material obtained by carrying out a forensic procedure under this Act on a database other than the DNA database system is guilty of an offence, unless—

(a)the DNA profile is stored in such a way that it is not possible to identify the person from whom the material was obtained or to whom the material relates; or

(b)the DNA profile is stored on a database kept under a corresponding law or kept by the Commonwealth in accordance with an arrangement entered into under subsection (2); or

(c)the DNA profile is temporarily stored on a database maintained in accordance with the regulations for purposes connected with the administration of this Act.

Maximum penalty:$10 000 or imprisonment for two years.

(4) A person who intentionally or recklessly—

(a)causes the supply of biological material for the purpose of storing a DNA profile on the DNA database system; or

(b)stores a DNA profile on the DNA database system,

in circumstances in which that storage is not authorised by this Act (or a corresponding law) is guilty of an offence.

Maximum penalty:$10 000 or imprisonment for two years.

Removal of information from DNA database system

46C. (1) The Commissioner of Police must ensure that a DNA profile derived from forensic material obtained under this Act or a corresponding law is not retained on the DNA database system beyond the time the destruction of the material is required under this Act or the corresponding law¹.

(2) A DNA profile derived from biological material obtained from a missing person and stored on the missing persons index of the DNA database system must, if the missing person is found and requests, in writing, removal of the DNA profile, be removed from that index as soon as practicable after the request.

(3) A person who intentionally or recklessly causes information to be retained on the database system in contravention of this section is guilty of an offence.

Maximum penalty:$10 000 or imprisonment for two years.

(4) This section only applies to information that identifies a person.

^1.This means, for example, that where an order is made authorising the retention of forensic material for a specified period, a DNA profile derived from the material can remain on the database for that specified period (but will have to be removed when the material is required to be destroyed).

Access to and use of DNA database system

46D. (1) No person may have access to information stored on the DNA database system that identifies a person except for the following purposes:

(a)for the purposes of a criminal investigation; or

(b)for the purposes of proceedings for a criminal offence; or

(c)for the purposes of making the information available to the person to whom the information relates; or

(d)for the purposes of administering the DNA database system; or

(e)for the purposes of an arrangement with the Commonwealth, or another State or a Territory under this Part; or

(f)for the purposes of an investigation by the Ombudsman or the Police Complaints Authority.

(2) Subject to subsection (3), a person who has access to information stored on the DNA database system must not compare a DNA profile stored on an index of the DNA database system specified in column 1 of the following table with a DNA profile stored on an index of the DNA database system specified in another column of the table if—

(a)"no" is shown in that other column in relation to the index; or

(b)"if within purpose" is shown in that other column in relation to the index and the comparison is carried out for a purpose other than a purpose for which the DNA profile was placed on the index.

	crime scene	suspects	volunteers (limited purposes)	volunteers (unlimited purposes)	offenders	missing persons	unknown deceased persons
crime scene	yes	yes	if within purpose	yes	yes	yes	yes
suspects	yes	no	no	no	yes	no	yes
volunteers (limited purposes)	if within purpose	no	no	no	if within purpose	if within purpose	if within purpose
volunteers (unlimited purposes)	yes	no	no	no	yes	yes	yes
offenders	yes	yes	no	no	yes	yes	yes
missing persons	yes	yes	yes	yes	yes	yes	yes
unknown deceased persons	yes	yes	yes	yes	yes	yes	no (see subsection (3)(b))

(3) However—

(a)a person who has access to information stored on the DNA database system may compare DNA profiles stored on the DNA database system in contravention of subsection (2) if the comparison is made solely for the purposes of administering the DNA database system; and

(b)a person who has access to information stored on the DNA database system may compare a DNA profile stored on the unknown deceased persons index with other DNA profiles stored on that index if the DNA profile was derived from material obtained from an incomplete body or a body part.

(4) If the regulations prescribe any other index of the DNA database system, the regulations may specify whether or not DNA profiles stored on that index may be compared with DNA profiles stored on other indexes of the DNA database system.

(5) A person—

(a)who gains access to information stored on the DNA database system in contravention of subsection (1); or

(b)who compares DNA profiles stored on the DNA database system otherwise than as authorised by subsections (2) and (3) or by regulation under subsection (4),

is guilty of an offence.

Maximum penalty:$10 000 or imprisonment for two years.

Transfer of information to suspects index following assimilation order

46E. If an assimilation order is made in relation to forensic material, a DNA profile derived from the material and stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index must be transferred to the suspects index.

Insertion of s. 46F

38. The following section is inserted in the principal Act immediately after the heading to Part 6:

Withdrawal of authority to carry out forensic procedure where that authority is based on consent

46F. (1) If a person has consented to a forensic procedure under this Act, and there is no authority to carry out the procedure independently of that consent, the person may, by withdrawing the consent, withdraw the authority to carry out the procedure at any time before completion of the procedure.

(2) If, at any time before completion of a forensic procedure, a person who has consented to the procedure behaves in a way that would indicate withdrawal of consent to a reasonable observer, the person is taken to have withdrawn consent.

(3) If authority to carry out a forensic procedure is withdrawn under subsection (1), the procedure may only be continued or resumed if—

(a)an order is made under this Act authorising the forensic procedure; or

(b)the procedure is authorised under some other law.

(4) The withdrawal of authority to carry out a forensic procedure under this section—

(a)in the case of a category 3 (suspects) procedure or a category 4 (offenders) procedure—does not invalidate the taking of evidence before the authority was withdrawn; but

(b)in any other case—invalidates the taking of evidence.

Amendment of s. 47—Confidentiality

39. Section 47 of the principal Act is amended—

(a)by striking out from subsection (1)(i) "this Part" and substituting "this Act";

(b)by inserting after subsection (1) the following subsection:

(1a) A person who has, or has had, access to information stored on the DNA database system must not disclose the information except—

(a)for the purposes of a criminal investigation; or

(b)for the purposes of making the information available to the person to whom the information relates; or

(c)for the purposes of administering the DNA database system; or

(d)for the purposes of an arrangement with the Commonwealth, or another State or a Territory under this Act; or

(e)for the purposes of an investigation by the Ombudsman or the Police Complaints Authority.

Amendment of s. 48—Restriction on publication

40. Section 48 of the principal Act is amended by inserting in paragraph (c) ", in proceedings for an order under Part 3," after "appropriate authority".

Substitution of ss. 49 and 50

41. Sections 49 and 50 of the principal Act are repealed and the following sections are substituted:

Forensic material lawfully obtained in another jurisdiction

49. Forensic material lawfully obtained under a law of the Commonwealth, another State or a Territory (before or after the commencement of this section) may be retained and used in this State for investigative, evidentiary or statistical purposes despite the fact that the material was obtained in circumstances in which this Act would not authorise the material to be obtained, or in accordance with requirements that are less stringent than (or are otherwise substantively different to) the requirements that would apply under this Act.

State Records Act 1997 not to apply

50. The State Records Act 1997 does not apply to forensic material or the DNA database system.

Repeal of Schedules 1 and 2

42. Schedules 1 and 2 of the principal Act are repealed.

Transitional provision

43. (1) The provisions of the principal Act governing forensic procedures apply, as amended by this Act, to forensic procedures conducted after the commencement of the amendments even though an offence or a suspected offence to which the procedures relate was or may have been committed before the commencement of the amendments.

(2) A DNA profile stored on a database maintained under the principal Act as in force immediately before the commencement of Part 5A (inserted by this Act) may be stored on the DNA database system established under Part 5A as if it were a DNA profile obtained after the commencement of Part 5A.

By Authority: J. D. Ferguson, Government Printer, South Australia

South Australian Bills

CRIMINAL LAW (FORENSIC PROCEDURES) (MISCELLANEOUS) AMENDMENT BILL 2002