Forensic Procedures Act 2000 (Tas)

Forensic Procedures Act 2000

An Act to provide for the carrying out of forensic procedures on people in relation to offences and for related purposes [Royal Assent 20 December 2000]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1. Short title This Act may be cited as the Forensic Procedures Act 2000 .

2. Commencement This Act commences on a day to be proclaimed.

3. Interpretation (1) In this Act, unless the contrary intention appears – amend includes the following: (a) omit matter; (b) insert matter; (c) omit matter and substitute new matter; appropriate authority means – (a) in relation to a participating jurisdiction other than the Australian Capital Territory – (i) an authority performing and exercising, in relation to the police force of that jurisdiction, functions and powers corresponding to those of the Commissioner of Police; and (ii) any other authority prescribed by the regulations; and (b) in relation to the Australian Capital Territory – (i) the Commissioner of the Australian Federal Police; and (ii) any other authority prescribed by the regulations; authorised person, in respect of a forensic procedure, means a person authorised to carry out that forensic procedure under section 40 ; charged person means a person who has been arrested and charged with a serious offence; convicted includes – (a) found guilty, whether or not a conviction is recorded; and (b) found not guilty by reason of insanity; corresponding law means a law that – (a) substantially corresponds to this Act; or (b) is prescribed by the regulations for the purposes of this definition; crime scene means – (a) a place where a serious offence was, or is reasonably suspected of having been, committed; and (b) a place or thing reasonably suspected of being associated with the commission of a serious offence; crime scene index means an index of DNA profiles derived from forensic material found – (a) at any place (whether within or outside Australia) where a serious 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 serious offence; or (c) on anything worn or carried by the victim, or a person reasonably suspected of being a victim, at the time when a serious 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, reasonably suspected of being associated with the commission of a serious offence; dentist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; destroy has the meaning given by subsection (4) ; DNA database system means an electronic database containing – (a) the following indexes of DNA profiles: (i) a crime scene index; (ii) a missing persons index; (iii) an unknown deceased persons index; (iv) a serious offenders index; (v) a volunteers (unlimited purposes) index; (vi) a volunteers (limited purposes) index; (vii) a suspects index – and information that may be used to identify the person from whose forensic material each DNA profile was derived; and (b) a statistical index; and (c) any other index prescribed by the regulations; forensic material means – (a) samples; and (b) handprints, fingerprints, footprints and toeprints; and (c) photographs and video recordings; and (d) casts or impressions – taken from or of a person's body; forensic procedure means – (a) an intimate forensic procedure; and (b) a non-intimate forensic procedure; forensic procedure application means an application to a magistrate under section 14 for a forensic procedure order; forensic procedure order means an order made by a magistrate under section 17 authorising the carrying out of a forensic procedure; function includes duty; in custody means – (a) under lawful arrest by warrant; and (b) under lawful arrest under section 27 of the Criminal Code ; and (c) otherwise in the lawful custody of a police officer under this or any other Act; and (d) on remand; informed consent in relation to – (a) a suspect, charged person or the parent of a suspect or charged person, has the meaning given by section 8(4) ; and (ab) a parent of a young child, has the meaning given by section 34D(2) ; and (b) a volunteer or a volunteer's parent, has the meaning given by section 29(3) ; interim forensic procedure order means an interim forensic procedure order made under section 19 ; intimate forensic procedure means – (a) an external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts; and (b) an internal examination of a body cavity other than the mouth; and (c) the taking of a sample of pubic hair; and (d) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and (e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts; and (f) the taking of a sample by swab or washing from a body cavity other than the mouth; and (g) the taking of an X-ray of a part of the body; and (h) the taking of a dental impression; and (i) the taking of a photograph of, or an impression or cast from, the external genital or anal area, the buttocks or, in the case of a female, the breasts; and (j) any other procedure prescribed by the regulations as an intimate forensic procedure; member of the Police Service means – (a) a person who holds the rank of Trainee or Junior Constable specified in section 4(2) of the Police Service Act 2003 ; or (b) an ancillary constable within the meaning of the Police Service Act 2003 ; missing persons index means an index of DNA profiles derived from forensic material of – (a) persons who are missing; and (b) volunteers who are relatives by blood of missing persons; non-intimate forensic procedure means – (a) the taking of a sample of blood; and (b) the taking of a sample of saliva; and (c) the taking of a sample by buccal swab; and (d) an external examination of a part of the body, other than the external genital or anal area, the buttocks or, in the case of a female, the breasts, that requires the touching of the body or the removal of clothing; and (e) an internal examination of the mouth; and (f) the taking of a sample of hair other than pubic hair; and (g) the taking of a sample from a nail or under a nail; and (h) the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and (i) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and (j) the taking of a handprint, fingerprint, footprint or toeprint; and (k) the taking of a photograph of a person or an external part of a person other than the external genital or anal area, the buttocks or, in the case of a female, the breasts; and (l) the taking of an impression or cast from a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts; and (m) any other procedure prescribed by the regulations as a non-intimate forensic procedure – but does not include an intrusion into any body cavity of a person other than the mouth; nurse means a registered nurse; Officer of Police means a commissioned police officer; parent means – (a) a person who has parental responsibility for a child or for a young child; and (b) a guardian of a child or of a young child; and (c) a foster parent of a child or of a young child; parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children; part of the body includes a prosthesis; participating jurisdiction means the Commonwealth, a State or a Territory if there is a corresponding law in force in that jurisdiction; prescribed offender means – (a) a person who has been convicted of a serious offence and – (i) is serving a sentence of imprisonment or detention in a prison; or (ii) after serving part of such a sentence in a prison is on release on parole under the Corrections Act 1997 ; and (b) a person who is subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999 ; prison means – (a) a prison within the meaning of the Corrections Act 1997 ; and (b) a detention centre within the meaning of the Youth Justice Act 1997 ; regulations means regulations made and in force under section 65 ; responsible Minister, in relation to a participating jurisdiction, means a Minister of that jurisdiction who is responsible for the administration of a corresponding law; responsible person, in relation to a DNA database system, means the person nominated by the Commissioner of Police to be responsible for the care, control and management of the system; sampling procedure, in relation to a young child, means – (a) the taking of a sample of saliva from the young child; and (b) the taking of a sample from the young child by buccal swab; serious offence means an offence – (a) under the law of this State or of a participating jurisdiction that is punishable on indictment even though in some instances it may be dealt with summarily; or (ab) against section 8 , 9 or 10 of the Animal Welfare Act 1993 ; or (b) against section 13A , 13B , 13C , 21 , 21A , 34B , 35 , 37 , 37AA(1) , 37B , 38B or 39 of the Police Offences Act 1935 ; or (ba) against section 9(1) , 74(1) , 107A(1) , 111(1) , 112 , 113(2) or 114(1) of the Firearms Act 1996 ; or (c) against section 20 , 21 , 22A , 26 , 27 or 27AA of the Misuse of Drugs Act 2001 ; or (d) against section 11A(1) or (2A) of the Police Powers (Vehicle Interception) Act 2000 ; serious offender means a person who has been convicted of a serious offence; serious offenders index means an index of DNA profiles derived from forensic material taken – (a) from prescribed offenders in accordance with Part 3 or under a corresponding law of a participating jurisdiction; and (b) from suspects and charged persons who have been convicted of a serious offence; statistical index means an index of information that – (a) is obtained from the analysis of forensic material taken from persons in accordance with this Act or under a corresponding law of a participating jurisdiction; and (b) has been compiled for statistical purposes; and (c) cannot be used to discover the identity of persons from whom the forensic material was taken; suspect means a person whom a police officer suspects on reasonable grounds has committed a serious offence but who has not been arrested and charged with the serious offence; suspects index means an index of DNA profiles derived from forensic material taken in accordance with Part 2 or under a corresponding law of a participating jurisdiction from suspects and charged persons; unknown deceased persons index means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown; volunteer means a person who volunteers to a police officer to undergo a forensic procedure; volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken in accordance with Part 4 or under a corresponding law of a participating jurisdiction from volunteers who have been informed that information obtained will be used only for a purpose specified to them under section 30 or under a provision of a corresponding law that has substantially the same effect as section 30 ; volunteers (unlimited purposes) index means an index of DNA profiles derived from material taken – (a) in accordance with Part 4 or under a corresponding law of a participating jurisdiction from volunteers who have been informed under section 30 or under a provision of that corresponding law that has substantially the same effect as section 30 that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the DNA database system may be used under Part 8 or under that corresponding law; and (b) from deceased persons whose identity is known; young child means a person under the age of 10 years. (2) In this Act, a reference to a sample taken from a person includes a reference to a sample taken from the person that consists of or includes matter from another person. (3) In this Act, a reference to informing a person of a matter is a reference to informing the person of the matter, through an interpreter if necessary, in language (including sign language or braille) in which the person is able to communicate with reasonable fluency. (4) For the purposes of this Act, a person destroys forensic material taken from another person by a forensic procedure, or forensic material taken from a young child by a sampling procedure, and the information obtained from the analysis of the material if the person – (a) physically destroys the forensic material; and (b) removes any means of identifying the person or young child from whom the forensic material was taken with the information obtained from the analysis of the material from searchable electronic databases, including the DNA database system (except as allowed for in the statistical index).