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CLAUSE NOTES
FORENSIC PROCEDURES AMENDMENT ACT 2014
Clause 1: Short title
Provides that the Act may be cited as the Forensic
Procedures Amendment Act 2014.
Clause 2: Commencement
Provides that the Act commences on the Royal
Assent.
Clause 3: Principal Act
Where the term Principal Act is used in this Bill, it is a
reference to the Forensic Procedures Act 2000.
Clause 4: Section 3 amended (Interpretation)
The clause makes a number of minor amendments to
definitions in the Principal Act. It also inserts two new
definitions, a definition of "sampling procedure" and a
definition of "young child". This is because these
amendments introduce these two terms. Clause 4
also adds several offences to the existing definition in
the Principal Act of "serious offence".
Clause 5: Section 4 substituted
This clause repeals section four of the Principal Act
and replaces it with a new section 4. Subclause (1)
restates the position currently presented in section 4
that the Act does not apply to a person under 10
years of age. Subclause (2) provides an exception to
the rule in subclause(1) to allow a sampling procedure
to be carried out on a person who is under the age of
10 years if the sampling procedure is carried out in
accordance with Part 4B, which this Bill inserts in to
the Principal Act.
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Clause 6: Section 8 amended (Circumstances for carrying out
forensic procedure)
Changes the wording of section 8 from "under the age
of 15 years" to "between the ages of 10 and 14 years
(both years inclusive)". This is a change to the
wording of this section only and does not change the
operation of the Act in any manner.
Clause 7: Section 12 amended (Circumstances in which police
officer may order non-intimate forensic procedure)
Corrects an error in terminology in the section 12(5)
of the Principal Act.
Clause 8: Section 14 amended (Application for forensic
procedure order)
Changes the wording only of section 14 of the
Principal Act, not the operation of the section.
Clause 9: Section 15 amended (Securing the presence at hearing
of a suspect or charged person who is under 15 and
not in custody)
Changes only the wording of section 15 of the
Principal Act, not the operation of the section.
Clause 10: Section 16 amended (Procedure at forensic procedure
application hearing if suspect or charged person under
15)
Changes only the wording of section 16 of the
Principal Act, not the operation of the section.
Clause 11: Section 18 amended (Application for interim forensic
procedure order)
The amendments to subsection (1) changes only the
wording of this subsection, not the operation of the
subsection. The amendments to subsection (2)
correct an error in terminology in this subsection.
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Clause 12: Section 19 amended (Interim forensic procedure
order)
The amendments to subsection (1) changes only the
wording of this subsection, not the operation of the
subsection. The amendments to subsection (2)
correct an error in terminology in this subsection.
Clause 13: Section 29 amended (Circumstances for carrying out
forensic procedures on volunteers)
Changes only the wording of section 29(2) of the
Principal Act, not the operation of the section.
Clause 14: Section 30 amended (Informing volunteer of parent of
forensic procedure)
Changes only the wording of section 30 of the
Principal Act, not the operation of the section.
Clause 15: Section 32 amended (Application for order to retain
forensic material, &c.)
Changes only the wording of section 32(3) of the
Principal Act, not the operation of the section.
Clause 16: Part 4B inserted
Inserts, after section 34C of the Principal Act, Part 4B
Sampling Procedures on Children under 10 years of
Age:
34D Circumstances for carrying out sampling
procedures on young children
A sampling procedure can only be carried out with the
informed consent of the parent of a young child or on
the order of a magistrate. A parent gives informed
consent under this Part if the parent consents after a
police officer has requested the parent to consent and
informed the parent in accordance with section 34E.
34E Information to be provided before giving consent
to sampling procedure
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If a police officer requests a parent to consent to a
sampling procedure the police officer must inform the
parent of the matters outlined in this section.
34F Withdrawal of consent to sampling procedure
A parent may inform the police officer to whom
consent was given, or an Officer of Police that the
parent withdraws their consent to the carrying out of
the sampling procedure. The sampling procedure
must not occur or, if it has commenced, not be
completed. However, a sampling procedure may still
occur on the order of a magistrate.
34G Application for order of Magistrate
Where a parent does not consent, or withdraws
consent, a police officer may apply to a magistrate for
an order authorising the carrying out of a sampling
procedure on a young child. This section specifies
how an application is to be made and what
information it is to include.
34H Notice of hearing of application
A copy of an application to a magistrate, along with
notice of the time and place of the hearing of the
application, must be served on the parent of the
young child to whom the application relates.
34I procedure at sampling procedure application
An application is to be held in a closed court. A
young child may be represented by a legal practitioner.
The legal practitioner must act in the best interests of
the child. The legal practitioner or parent of a child
may cross examine the applicant for the order, with
the leave of the magistrate call or cross examine any
other witness, and address the magistrate. A
magistrate must not give leave to call or cross examine
other witnesses unless the magistrate is satisfied that it
is in the interests of justice. Subclause (6) outlines the
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matters a magistrate must take into account when
making an order for a sampling procedure.
34J Sampling procedure order
A magistrate may make a sampling procedure order
for the purposes outlined in this section. The
magistrate must give reasons for the order and ensure
a written record of the order is kept and a copy of it
provided to the applicant. The order may specify the
time, place and manner in which the sampling
procedure is to occur. A magistrate can order the
parent of the young child to make the child available
for the sampling procedure. If the parent fails to
comply with this order there is a penalty of a fine not
exceeding 50 penalty units or a term of imprisonment
not exceeding 2 years.
34K General rules for carrying out sampling procedure
Provides how a sampling procedure is to be carried
out and who may carry it out. A person authorised to
carry out a procedure may ask another person for
assistance, this will allow, for example, a parent to take
a sample from their child if this is convenient.
34L Presence of parent or witness while sampling
procedure is carried out
A sampling procedure must be carried out in the
presence of a parent, or, where a parent of a young
child is unavailable an independent witness is to be
present. Subclause 3 provides that if a parent or
independent witness unreasonable interferes with or
obstructs the carrying out of a sampling procedure
they may be excluded and the procedure may
continue in their absence. At subclause 4 an Officer
of Police is also provided with power to notify a
parent in writing that they are not to be present at the
sampling procedure in the Officer of Police believes
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that the parent may unreasonably interfere with, or
obstruct, the carrying out of the sampling procedure.
34M Presence of police officers during the sampling
procedure
Outlines when police officers may be present during
the carrying out of a sampling procedure.
34N Limit on use of forensic material taken under this
Part
Information obtained from the analysis of forensic
material taken may only be matched with other
information if that matching is for the purpose for
which the forensic material was taken from the young
child.
Clause 17: Section 38 amended (Withdrawal of consent)
Changes the wording of section 38(1) of the Principal
Act from "under the age of 15 years" to "between the
ages of 10 and 14 years (both years inclusive)". This is
a change to the wording of this section only and does
not change the operation of the Act in any manner.
Clause 18: Section 44 amended (Presence of parent or witness
while forensic procedure is carried out)
Changes the wording variously in section 44 of the
Principal Act from "under the age of 15 years" to
"between the ages of 10 and 14 years (both years
inclusive)". This is a change to the wording of this
section only and does not change the operation of the
Act in any manner.
Clause 19: Section 51B inserted
After section 51A of the Principal Act, the following
section is inserted in Part 7:
51B Destruction of forensic material taken under Part
4B
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Provides that material obtained under the Act, or any
information obtained from the analysis of such
material, must be destroyed as soon as practicable
after the material is no longer required.
Clause 20: Section 53 amended (Use of information on DNA
database system)
Allows access to the DNA database system for the
purpose of forensic comparison with forensic material
obtained under the new Part 4B.
Clause 21: Section 58 amended (Database information)
Allows the Minister to enter into arrangements with
other Ministers in other Australian jurisdictions to
share information in relation to identifying a deceased
person or identifying or locating a missing person.
Clause 22: Section 63 amended (Disclosure of information)
Allows a person to disclose information stored on the
DNA database system for the purpose of identifying a
deceased person or identifying or locating a missing
person.
Clause 23: Repeal of Act
Is a standard clause included in all amending Acts. All
amendments made by an amending Act are taken to
be incorporated in to the Principal Act when the
amending Act commences. As such, the amending
Act does not need to remain on the statute books.
An automatic repeal provision is the most expedient
manner in which to remove the now defunct Act from
the statute book.
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