Victorian Current Acts Victorian Current ActsS. 464Z(1) amended by No. 3/2019 s. 57(1).
(1) The Chief Commissioner of Police may authorise a person or a class of persons to take non-intimate samples or to conduct physical examinations of a non-intimate part of the body for the purposes of this Subdivision.
S. 464Z(1A) inserted by No. 16/2002 s. 7(1), amended by Nos 37/2014 s. 10(Sch. item 36.32(a)), 59/2015 s. 27(1), substituted by No. 3/2019 s. 57(2).
(1A) The Chief Commissioner of Police may authorise a police officer or police custody officer, or a class of police officers or police custody officers, to supervise for the purposes of subsection (3A) or (3AC)—
(a) the taking of scrapings from the mouth; or
(b) the taking of a DNA profile sample that is a scraping from the mouth.
S. 464Z(2) amended by No. 16/2002 s. 7(2).
(2) The Chief Commissioner must give a copy of an authority under subsection (1) or (1A) to the Minister who must cause it to be laid before the Legislative Council and the Legislative Assembly before the expiration of the seventh sitting day of the Council or the Assembly, as the case may be, after it has been received by the Minister.
S. 464Z(2A) inserted by No. 3/2019 s. 57(3).
(2A) The taking of a DNA profile sample or the conduct of a forensic procedure in accordance with this Subdivision, must be taken or conducted by the least intrusive and least painful method practicable in the circumstances.
(3) For the purposes of a forensic procedure under this Subdivision—
S. 464Z(3)(a) amended by Nos
81/1997
s. 19(2), 13/2010 s. 51(Sch. item 17.6(a)).
(a) an intimate sample (other than a dental impression) or a physical examination of an intimate part of the body may only be taken or conducted by a medical practitioner or nurse or midwife of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined;
(b) a dental impression may only be taken by a dentist;
S. 464Z(3)(c) amended by Nos
81/1997
s. 19(2), 16/2002 s. 7(3), 13/2010 s. 51(Sch.
item 17.6(b)).
(c) a non-intimate sample or a physical examination of a non-intimate part of the body may be taken or conducted by a medical practitioner or nurse, or midwife or a person authorised in accordance with subsection (1).
S. 464Z(3AAA) inserted by No. 3/2019 s. 57(4).
(3AAA) For the purposes of a DNA profile sample taken in accordance with this Subdivision—
(a) a sample may only be taken by a medical practitioner or nurse of the same sex, if practicable, as the person from whom the sample is to be taken; and
(b) if the sample is to be taken from a child the sample must be taken in the presence of a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person of the same sex, if practicable, as the child.
S. 464Z(3AA) inserted by No. 41/2004 s. 13(1), amended by No. 37/2014 s. 10(Sch. item 36.32(b)).
(3AA) Despite subsection (3), a person from whom a sample of hair, other than pubic hair, is to be taken in accordance with—
(a) an authorisation given under section 464SA; or
(b) an order made by a court under this Subdivision—
may elect to provide instead a scraping taken by the person from his or her mouth if a police officer authorised in accordance with subsection (1A) considers that—
(c) a scraping is appropriate in the circumstances; and
(d) it is appropriate for the person to take the scraping.
S. 464Z(3AB) inserted by No. 41/2004 s. 13(1), amended by No. 27/2006 s. 17(22).
(3AB) An election made by a person under subsection (3AA) must be recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3AC) inserted by No. 3/2019 s. 57(5).
(3AC) Despite subsection (3AAA), a person from whom a DNA profile sample is to be taken in accordance with this Subdivision may elect to provide instead a scraping taken by the person from their mouth if a police officer authorised in accordance with subsection (1A) considers that it is appropriate for the person to take the scraping.
S. 464Z(3AD) inserted by No. 3/2019 s. 57(5).
(3AD) An election made by a person under subsection (3AC) must be recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3A) inserted by No. 16/2002 s. 7(4), amended by Nos 37/2014 s. 10(Sch. item 36.32(c)(i)), 59/2015 s. 27(2), 3/2019 s. 57(6).
(3A) Nothing in subsection (3) or (3AAA) prevents a person from whom a scraping from the mouth is to be taken from taking the scraping himself or herself under the supervision of a police officer or police custody officer authorised in accordance with subsection (1A) if—
S. 464Z(3A)(a) amended by Nos 37/2014 s. 10(Sch. item 36.32(c)(ii)), 59/2015 s. 27(2).
(a) the police officer or police custody officer considers it appropriate for the person to do so; and
S. 464Z(3A)(b) amended by No. 27/2006 s. 17(23).
(b) the person consents to taking the scraping and the consent is recorded by audio recording or audiovisual recording or in writing signed by the person.
S. 464Z(3B) inserted by No. 16/2002 s. 7(4), amended by Nos 41/2004 s. 13(2)(a), 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(3), 3/2019 s. 57(7).
(3B) The police officer referred to in subsection (3AA) or (3AC), or the police officer or police custody officer referred to in subsection (3A), must give or send by registered post to the person from whom a scraping is taken or his or her legal practitioner, without charge—
S. 464Z(3B)(a) amended by Nos 41/2004 s. 13(2)(b)(i)(ii), 27/2006 s. 17(24).
(a) if the election or consent is recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the election is made or the consent is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and
S. 464Z(3B)(b) amended by No. 41/2004 s. 13(2)(c).
(b) if the election or consent is recorded in writing, a copy of the record forthwith.
S. 464Z(4) amended by Nos
81/1997
s. 19(3), 41/2004 s. 13(3), 13/2010 s. 51(Sch.
item 17.6(c)).
(4) A person from whom an intimate sample is to be taken (except a scraping from a person's mouth to be taken by that person) or who is to undergo a physical examination of an intimate part of the body may request that a medical practitioner or nurse or midwife or, if a dental impression is to be taken, a dentist of his or her choice take the sample or conduct the examination or be present during the forensic procedure.
S. 464Z(5) amended by Nos
81/1997
s. 19(4), 13/2010 s. 51(Sch. item 17.6(d)).
(5) If a medical practitioner, nurse, midwife or dentist is chosen by a person under subsection (4)—
(a) if practicable, the forensic procedure is to be conducted by or in the presence of the chosen person; and
S. 464Z(5)(b) amended by No.
81/1997
s. 19(4).
(b) if the chosen person conducts the forensic procedure, a medical practitioner, nurse or dentist (as the case requires) nominated by the police must be present.
(6) A sample must be taken or a physical examination must be conducted—
S. 464Z(6)(a) amended by Nos
81/1997
s. 21(a), 13/2010 s. 51(Sch. item 17.6(e)).
(a) if taken or conducted by a medical practitioner, nurse, midwife or dentist, in a manner consistent with the appropriate medical or dental standards; and
S. 464Z(6)(ab) inserted by No.
81/1997
s. 21(b), amended by Nos 16/2002 s. 7(5)(a), 37/2014
s. 10(Sch. item 36.32(d)), 59/2015 s. 27(4).
(ab) in the presence of a police officer or police custody officer who is present to witness the taking of the sample or the conduct of the physical examination, subject to subsection (9), and is of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined; and
(b) in circumstances affording reasonable privacy to the person from whom the sample is to be taken or who is to be examined; and
(c) in the presence only of—
S. 464Z(6)(c)(i) amended by Nos
81/1997
s. 21(c), 37/2014 s. 10(Sch. item 36.32(d)), 59/2015
s. 27(4).
(i) a police officer or police custody officer required by paragraph (ab) to be present; and
(ii) a person required by section 464ZA to be present; and
S. 464Z(6)
(c)(iii) amended by No. 16/2002 s. 7(5)(b).
(iii) a person referred to in subsection (5); and
S. 464Z(6)
(c)(iv)
inserted by No. 16/2002 s. 7(5)(b). amended by
Nos 37/2014 s. 10(Sch. item 36.32(d)), 59/2015 s. 27(4).
(iv) a police officer or police custody officer referred to in subsection (3A).
(7) A blood sample for the purposes of this Subdivision must not exceed 10 millilitres.
S. 464Z(7A) inserted by No. 41/2004 s. 13(4).
(7A) For the purposes of this Subdivision, a person is authorised to take a sample of hair by removing the root of the hair only if—
(a) the person takes only so much hair as the person believes is necessary for analysis of the sample or other examination of the hair; and
(b) strands of hair are taken using the least painful technique known and available to the person.
S. 464Z(8) amended by Nos
81/1997
s. 19(5), 13/2010 s. 51(Sch. item 17.6(f)).
(8) This Subdivision does not compel any medical practitioner, nurse, midwife or dentist to take a sample from a person nor to conduct a physical examination of a person nor to be present when a sample is taken or an examination is conducted.
S. 464Z(9) inserted by No. 16/2002 s. 7(6).
(9) If a scraping is to be taken from a person's mouth and the person is to take it, the witness required by subsection (6)(ab) to be present need not be of the same sex as the person.
S. 464ZA (Heading) inserted by No. 41/2004 s. 14(1), amended by No. 25/2017 s. 51(1).
S. 464ZA inserted by No. 84/1989 s. 5, substituted by No. 129/1993 s. 7.