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This is a Bill, not an Act. For current law, see the Acts databases.
Crimes (Forensic Procedures)
Amendment Bill 2009
No , 2009
A Bill for
An Act to amend the Crimes (Forensic Procedures) Act 2000 to make further
provision with respect to the carrying out of forensic procedures and the use of
forensic material and DNA profiles; and for other purposes.
Clause 1 Crimes (Forensic Procedures) Amendment Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes (Forensic Procedures) Amendment Act 2009. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of State Records Regulation 2005 6
Schedule 2 Provisions excepted from operation of section 21 7
Insert "sections 81D (2) (Withdrawal of consent) and 81M (3) (Use and 8
retention of forensic material taken from child under 10 years of age)," 9
after "Crimes (Forensic Procedures) Act 2000," under the heading 10
"Provisions requiring destruction of records". 11
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Crimes (Forensic Procedures) Amendment Bill 2009
Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
Schedule 1 Amendment of Crimes (Forensic 1
Procedures) Act 2000 No 59 2
[1] Section 3 Interpretation 3
Omit the note from the definition of child in section 3 (1). 4
[2] Section 3 (1), definition of "order" 5
Omit the definition. 6
[3] Section 3 (5) 7
Omit "any such DNA profile". 8
Insert instead "any DNA profile derived from that material". 9
[4] Part 6 Carrying out forensic procedures on suspects 10
Omit the note at the beginning of the Part. Insert instead: 11
Note. Some provisions contained in this Part also apply to the carrying 12
out of forensic procedures on serious indictable offenders, volunteers 13
and persons under 10 years of age. See sections 65, 76 (4) and 81A (4). 14
[5] Section 76 Carrying out of forensic procedures on volunteers 15
Insert ", a person under 10 years of age" after "a suspect" in section 76 (1). 16
[6] Section 77 Informed consent of volunteer or parent or guardian of 17
volunteer 18
Insert ", including evidence that may be used against the volunteer" after 19
"court of law" in section 77 (1) (c). 20
[7] Section 81 Retention of forensic material by order of Magistrate after 21
withdrawal of consent 22
Omit "A Magistrate may order that forensic material taken or information 23
obtained from carrying out a forensic procedure on a volunteer who withdraws 24
consent to the retention of the material" from section 81 (2). 25
Insert instead "If a volunteer, or the parent or guardian of a volunteer, 26
expressly withdraws consent to the retention of forensic material taken from 27
the volunteer or of information obtained from the analysis of that material, a 28
Magistrate may order that such forensic material or information". 29
[8] Section 81 (3) 30
Omit "carrying out the procedure". 31
Insert instead "the analysis of that material". 32
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Crimes (Forensic Procedures) Amendment Bill 2009
Schedule 1 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
[9] Part 8A 1
Insert after section 81: 2
Part 8A Carrying out of forensic procedures on 3
children under 10 years of age 4
81A Carrying out of forensic procedure on child under 10 years of age 5
prohibited except in limited circumstances 6
(1) In this Part, child means a person under 10 years of age. 7
(2) A person is authorised to carry out a forensic procedure on a child 8
in accordance with this Part and not otherwise. 9
(3) This Part authorises the carrying out of a forensic procedure on a 10
child only in the following circumstances: 11
(a) if a parent or guardian of the child gives informed consent 12
to the carrying out of the forensic procedure under section 13
81C, 14
(b) if the forensic procedure is carried out on the child 15
pursuant to a Magistrate's order under section 81F. 16
(4) Sections 44, 48, 49, 52 and 56 (1) apply to the carrying out of a 17
forensic procedure authorised by this Part as if the references to 18
a suspect in those sections were references to a child. 19
81B References to parent or guardian of child under 10 years of age 20
(1) Despite any provision of this Part, if a parent or guardian of a 21
child is a suspect in relation to the offence under investigation in 22
relation to which a forensic procedure is proposed to be carried 23
out on the child, a reference to the parent or guardian of the child 24
is to be read as a reference to: 25
(a) a parent or guardian of the child who is not a suspect in 26
relation to the offence under investigation, or 27
(b) if such a parent or guardian is not available--the closest 28
available relative of the child who is not a suspect in 29
relation to the offence under investigation. 30
(2) In this Part: 31
closest available relative of a child means one of the following 32
persons who is at least 18 years of age and is available at the 33
relevant time: 34
(a) a brother or sister of the child, 35
(b) a grandparent of the child, 36
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
(c) an uncle or aunt of the child. 1
81C Carrying out of forensic procedures on child under 10 years of age 2
with informed consent of parent or guardian 3
(1) This section applies to the carrying out of a forensic procedure on 4
a child for the following purposes: 5
(a) in relation to the investigation of an offence under Part 3 or 6
Subdivision 2 of Division 1 of Part 4 of the Crimes Act 7
1900 of which the child is a victim, 8
(b) to eliminate the child's forensic material from other 9
forensic material found at a crime scene in relation to an 10
offence. 11
(2) A person is authorised to carry out a forensic procedure to which 12
this section applies: 13
(a) with the informed consent of the child's parent or guardian 14
given in accordance with this section, or 15
(b) if the informed consent of the parent or guardian of the 16
child cannot be obtained or is withdrawn as referred to in 17
section 81D--by order of a Magistrate under section 18
81F (1) (a). 19
(3) A parent or guardian of a child gives informed consent in 20
accordance with this section if the parent or guardian consents in 21
the presence of an independent person after a police officer 22
informs the parent or guardian (personally or in writing) of the 23
following matters: 24
(a) the way in which the forensic procedure is to be carried 25
out, 26
(b) the purpose for which the forensic procedure is required, 27
(c) the offence in relation to which the police officer wants the 28
forensic procedure to be carried out, 29
(d) that the child is under no obligation to undergo the forensic 30
procedure, 31
(e) that the forensic procedure will be carried out by an 32
appropriately qualified police officer or person, 33
(f) that the parent or guardian may consult an Australian legal 34
practitioner of the parent's or guardian's choice before 35
deciding whether or not to consent to the forensic 36
procedure, 37
(g) that the parent or guardian may at any time withdraw 38
consent to the child undergoing the forensic procedure or 39
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Schedule 1 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
to the retention of the forensic material taken or of 1
information obtained from the analysis of that material, 2
(h) if the police officer intends the information to be placed on 3
the volunteers (limited purposes) index of the DNA 4
database system: 5
(i) the purpose for which the information is to be placed 6
on that index and that the information may be used 7
and matched with other indexes, but only for that 8
purpose, and 9
(ii) that the information placed on the DNA database 10
system will be removed as soon as is reasonably 11
practicable after a period of 12 months, unless any 12
proceedings for the prosecution of an offence to 13
which the investigation relates have not yet 14
concluded. 15
(4) The consent of a parent or guardian to the carrying out of a 16
forensic procedure under this section is not effective unless: 17
(a) the consent is in writing and in a form containing the 18
particulars prescribed by the regulations, and 19
(b) the consent is signed by the parent or guardian, and 20
(c) the signature is witnessed by an independent person, and 21
(d) the parent or guardian is given a copy of the consent as 22
soon as practicable after it is signed and witnessed. 23
(5) In this section, independent person means a person other than a 24
police officer or other person involved in the investigation of an 25
offence to which the forensic procedure relates. 26
81D Withdrawal of consent 27
(1) If a parent or guardian of a child expressly withdraws consent to 28
the carrying out of a forensic procedure under this Part (or if the 29
withdrawal of such consent can reasonably be inferred from the 30
parent's or guardian's conduct) before or during the carrying out 31
of the forensic procedure: 32
(a) the forensic procedure is to be treated from the time of the 33
withdrawal as a forensic procedure for which consent has 34
been refused, and 35
(b) the forensic procedure is not to proceed except by order of 36
a Magistrate under section 81F. 37
(2) If, after the carrying out of a forensic procedure under this Part on 38
a child, the parent or guardian of the child expressly withdraws 39
consent to the retention of the forensic material taken or of 40
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
information obtained from the analysis of that material, the 1
forensic material and any information obtained from analysis of 2
the material is, subject to any order made under section 81N, to 3
be destroyed as soon as practicable after the consent is 4
withdrawn. 5
Note. Section 3 (5) explains the meaning of destroy. 6
(3) A police officer may request, but cannot require, a parent or 7
guardian of a child who withdraws consent to the carrying out of 8
a forensic procedure under this Part to confirm the withdrawal of 9
consent in writing. 10
81E Application for order 11
(1) An authorised applicant may apply to a Magistrate for an order 12
under section 81F. 13
(2) An application must: 14
(a) be made in writing, and 15
(b) specify the type of forensic procedure to be carried out, 16
and 17
(c) specify the purpose for which the forensic procedure is to 18
be carried out, and 19
(d) be supported by evidence on oath or by affidavit in relation 20
to the matters which the Magistrate is to take into account, 21
as referred to in section 81F (2), and 22
(e) specify whether or not the consent of the parent or 23
guardian of the child has been sought and, if it has, whether 24
that consent was withdrawn or could not be obtained. 25
81F Circumstances in which Magistrate may order carrying out of 26
forensic procedure on child under 10 years of age 27
(1) A Magistrate may order the carrying out of a forensic procedure 28
on a child, but only for the following purposes: 29
(a) to investigate an offence, 30
(b) to assist in locating or identifying a missing person, 31
(c) to assist in identifying a deceased person. 32
(2) In determining whether to make an order under this section, the 33
Magistrate is to take into account the following: 34
(a) the age of the child, 35
(b) the best interests of the child, 36
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Schedule 1 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
(c) so far as can be ascertained, whether the child understands 1
what will be involved in carrying out the forensic 2
procedure and any wishes of the child with respect to 3
whether the forensic procedure should be carried out, 4
(d) any wishes expressed by the parent or guardian of the child 5
with respect to whether the forensic procedure should be 6
carried out, 7
(e) any submissions or evidence presented to the Magistrate 8
by an Australian legal practitioner on behalf of the child, 9
(f) the type of forensic procedure that is proposed to be carried 10
out, 11
(g) the purpose for which the forensic procedure is required, 12
(h) if the forensic procedure is proposed to be carried out for 13
the purposes of the investigation of a particular offence-- 14
the seriousness of the circumstances surrounding the 15
commission of the offence, 16
(i) any other matter that the Magistrate considers relevant. 17
(3) An order under this section may require the forensic procedure to 18
be carried out at a time or place specified in the order. 19
81G Persons who may carry out forensic procedures on children under 20
10 years of age 21
(1) The table to section 50 applies to the carrying out of a forensic 22
procedure under this Part as follows: 23
(a) for each forensic procedure specified in the first column of 24
the table, the persons who are authorised to carry out that 25
procedure under this Part are specified in the second 26
column of the table, 27
(b) for each forensic procedure, the third column of the table 28
shows whether a parent or guardian of a child is entitled to 29
request that a medical practitioner or dentist of the parent's 30
or guardian's choice is present while the forensic 31
procedure is carried out, as if a reference to a suspect in the 32
heading to that column were a reference to the parent or 33
guardian of the child. 34
Note. Section 81I makes detailed provision for the presence of a 35
medical practitioner or dentist of the parent's or guardian's choice 36
while a forensic procedure is carried out. 37
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
(2) A person is authorised to carry out a particular forensic procedure 1
if he or she is an appropriately qualified police officer or person 2
in relation to the procedure even if the person also satisfies 3
another description specified in the table to section 50 that is not 4
specified in relation to the particular forensic procedure. 5
Note. For example, a police officer who is an appropriately qualified 6
police officer or person to take samples of blood may take such samples 7
even though the table does not expressly list police officers as persons 8
who may take samples of blood. 9
81H Presence of other people while forensic procedure is carried out 10
on children under 10 years of age 11
(1) A parent or guardian of a child, or an Australian legal practitioner 12
representing a child, must, if reasonably practicable, be present 13
while a forensic procedure is carried out on the child. 14
(2) Where the presence of a police officer is reasonably necessary to 15
ensure that a forensic procedure is carried out effectively and in 16
accordance with this Part, the police officer is (if reasonably 17
practicable) to be a person of the sex chosen by the child or, if the 18
child is unable or does not wish to make such a choice, a person 19
of the same sex as the child. 20
(3) Subsection (2) does not apply to the following forensic 21
procedures: 22
(a) the taking of hand prints, finger prints, foot prints or toe 23
prints, 24
(b) any non-intimate forensic procedure that may be carried 25
out without requiring the child to remove any clothing 26
other than his or her overcoat, coat, jacket, gloves, socks, 27
shoes, scarf or hat. 28
81I Medical practitioner or dentist of parent's or guardian's choice 29
may be present for some forensic procedures 30
A medical practitioner or dentist chosen by a parent or guardian 31
of a child pursuant to section 81G (1) (b) is to be present at the 32
forensic procedure unless he or she: 33
(a) is unable, or does not wish, to attend, or 34
(b) cannot be contacted, 35
within a reasonable time or, if relevant, within the time in which 36
the person responsible for the effective carrying out of the 37
forensic procedure considers the forensic procedure should be 38
carried out if it is to be effective in affording evidence of the 39
relevant offence. 40
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81J Recording of forensic procedure 1
(1) The carrying out of a forensic procedure under this Part must be 2
recorded by electronic means unless: 3
(a) a parent or guardian of the child objects to the recording, or 4
(b) the recording is not practicable. 5
(2) Subsection (1) does not apply to: 6
(a) the taking of a hand print, finger print, foot print or toe 7
print, or 8
(b) the taking of a photograph, other than of the child's private 9
parts. 10
(3) Before the forensic procedure is carried out, the parent or 11
guardian of the child must be informed: 12
(a) of the reasons for recording the carrying out of the forensic 13
procedure, including the protection that the recording 14
provides for the child, and 15
(b) that the parent or guardian of the child may object to the 16
recording. 17
(4) If the carrying out of the forensic procedure is not to be recorded 18
by electronic means, the forensic procedure must be carried out 19
in the presence of an independent person. 20
(5) Subsection (4) does not apply if the parent or guardian of the 21
child expressly and voluntarily waives the child's right to have an 22
independent person present, but such a person may nevertheless 23
be present if the investigating police officer so directs. 24
(6) In this section, independent person means a person other than a 25
police officer or other person involved in the investigation of an 26
offence to which the forensic procedure relates. 27
81K Photographs 28
Where a forensic procedure involves the taking of a photograph 29
of a part of a child's body, the investigating police officer 30
concerned must ensure that a copy of the photograph is made 31
available to a parent or guardian of the child. 32
81L Material to be made available to parent or guardian of child under 33
10 years of age 34
(1) If material from a sample taken from a child is analysed in 35
relation to the investigation of an offence, the investigating police 36
officer must ensure that, if a parent or guardian of the child so 37
requests in writing: 38
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
(a) a copy of the child's DNA profile that has been derived 1
from the sample, and 2
(b) a statement as to whether or not a match has been found, in 3
relation to the investigation, between the child's DNA 4
profile and any other DNA profile, 5
are made available to the parent or guardian of the child. 6
(2) The parent or guardian of a child is to be informed of his or her 7
right to make such a request by the investigating police officer. 8
(3) The requirements of subsection (1) need not be complied with in 9
a manner that would, or at a time when to do so would: 10
(a) prejudice the investigation of any offence, or 11
(b) be a source of embarrassment to a victim of any offence. 12
81M Use and retention of forensic material taken from child under 10 13
years of age 14
(1) Any forensic material taken from a child pursuant to this Part 15
must only be used for the purposes for which the carrying out of 16
the forensic procedure was authorised. 17
(2) Any DNA profile derived from forensic material taken from a 18
child: 19
(a) may be placed on: 20
(i) the volunteers (limited purposes) index, or 21
(ii) the missing persons index, or 22
(iii) the unknown deceased persons index, 23
but must not be placed on any other index, and 24
(b) if placed on an index of the DNA database system, may 25
only be matched with a DNA profile on the same or 26
another index of the DNA database system if the matching 27
is for a purpose for which the DNA profile of the child was 28
placed on the index of the DNA database system (despite 29
section 93). 30
(3) Any forensic material obtained from the carrying out of a 31
forensic procedure must: 32
(a) in the case of forensic material obtained pursuant to 33
section 81C or an order under section 81F (1) (a) or 34
81N (2)--be destroyed as soon as is reasonably 35
practicable after a period of 12 months has elapsed since 36
the forensic material was taken, unless any proceedings for 37
the prosecution of an offence to which the investigation 38
relates have not yet concluded, and 39
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(b) in the case of forensic material obtained pursuant to an 1
order under section 81F (1) (b) or (c)--be destroyed within 2
12 months of being obtained. 3
Note. Section 3 (5) explains the meaning of destroy. 4
81N Retention of forensic material by order of a Magistrate after parent 5
or guardian of child under 10 years of age withdraws consent 6
(1) An authorised applicant may apply to a Magistrate for an order 7
under subsection (2). 8
(2) A Magistrate may order that forensic material taken or 9
information obtained from carrying out a forensic procedure on a 10
child whose parent or guardian withdraws consent to the 11
retention of the material be retained if the Magistrate is satisfied 12
that: 13
(a) during an investigation into the commission of a serious 14
indictable offence material reasonably believed to be from 15
the body of a person who committed the offence had been 16
found: 17
(i) at the scene of the offence, or 18
(ii) on the victim of the offence or anything reasonably 19
believed to have been worn or carried by the victim 20
when the offence was committed, or 21
(iii) on the child or anything reasonably believed to have 22
been worn or carried by the child at the scene of the 23
offence or when the offence was committed, or 24
(iv) on an object or person reasonably believed to have 25
been associated with the commission of the offence, 26
and 27
(b) there are reasonable grounds to believe that information 28
obtained from analysis of the forensic material taken from 29
the child is likely to produce evidence of probative value 30
in relation to the serious indictable offence being 31
investigated, and 32
(c) the retention of the forensic material taken from the child 33
is justified in all the circumstances. 34
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
[10] Section 87 1
Omit the section. Insert instead: 2
87 Destruction of forensic material taken from offender after 3
conviction set aside or quashed 4
(1) This section applies if, after a forensic procedure is carried out on 5
a person who is: 6
(a) a suspect who is subsequently convicted of an offence, or 7
(b) a serious indictable offender under Part 7, or 8
(c) an untested former offender under Part 7A, or 9
(d) an untested registrable person under Part 7B, 10
the conviction by virtue of which he or she is such a person (or, 11
if there is more than one such conviction, each of them) is set 12
aside or quashed. 13
(2) If forensic material has been taken from a person to whom this 14
section applies and: 15
(a) no appeal is lodged against the setting aside or quashing of 16
the conviction, or 17
(b) an appeal is lodged and the setting aside or quashing of the 18
conviction is confirmed or the appeal is withdrawn, or 19
(c) there is no reasonable prospect of a retrial or rehearing in 20
connection with the setting aside or quashing of the 21
conviction, 22
the forensic material must be destroyed as soon as practicable 23
unless an investigation into, or a proceeding against the person 24
for, another offence is pending. 25
[11] Section 90 Definitions 26
Insert "and persons under 10 years of age" after "volunteers" in paragraph (b) 27
of the definition of missing persons index. 28
[12] Section 90, definition of "volunteers (limited purposes) index" 29
Omit the definition. Insert instead: 30
volunteers (limited purposes) index means an index of DNA 31
profiles derived from: 32
(a) forensic material taken in accordance with Part 8 or under 33
a corresponding law of a participating jurisdiction from 34
volunteers who (or whose parents or guardians) have been 35
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Crimes (Forensic Procedures) Amendment Bill 2009
Schedule 1 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
informed that information obtained will be used only for a 1
purpose specified to them under section 77 (2) (b) or (c1), 2
or 3
(b) forensic material taken from a person under 10 years of age 4
in accordance with Part 8A. 5
[13] Section 91 Supply of forensic material for DNA database system 6
purposes 7
Omit "or a volunteer in accordance with Part 7, 7A, 7B or 8" from paragraph 8
(c) of the definition of permitted forensic material in section 91 (3). 9
Insert instead ", volunteer or a person under 10 years of age in accordance with 10
Part 7, 7A, 7B, 8 or 8A". 11
[14] Section 92 Use of information on DNA database system 12
Insert "81M or" after "section" in section 92 (2) (a). 13
[15] Section 93A 14
Insert after section 93: 15
93A Use of DNA profile of child or incapable person 16
(1) Despite any other provision of this Act, if a forensic procedure is 17
carried out on a volunteer who is a child or incapable person and 18
a DNA profile is obtained as a result of that forensic procedure, 19
that DNA profile: 20
(a) must not be placed on the volunteers (unlimited purposes) 21
index of the DNA database system, and 22
(b) must, if placed on an index of the DNA database system, 23
only be used for the purpose for which the DNA profile is 24
placed on that index, and 25
(c) must not be matched with any DNA profile on the same or 26
another index of the DNA database system for any other 27
purpose, unless otherwise ordered by a Magistrate. 28
(2) In determining whether to make an order under subsection (1) (c), 29
the Magistrate is to take into account the following: 30
(a) the age of the volunteer, 31
(b) the best interests of the volunteer, 32
(c) so far as can be ascertained, whether the volunteer 33
understands what will be involved in the matching of his 34
or her DNA profile on the DNA database system and any 35
wishes of the volunteer with respect to whether that should 36
be ordered, 37
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 1
(d) any wishes expressed by the parent or guardian of the 1
volunteer with respect to the matching of the volunteer's 2
DNA profile on the DNA database system, 3
(e) any submissions or evidence presented to the Magistrate 4
by an Australian legal practitioner on behalf of the 5
volunteer, 6
(f) the purpose for which the matching is required, 7
(g) any other matter that the Magistrate considers relevant. 8
[16] Sections 100 (1), 101 and 102 9
Omit "or volunteer" wherever occurring. 10
Insert instead ", volunteer or person under 10 years of age". 11
[17] Section 100 Obligation of investigating police officers relating to 12
recordings 13
Omit "or volunteer" where firstly occurring in section 100 (2). 14
Insert instead ", volunteer or person under 10 years of age". 15
[18] Section 100 (2) (a) 16
Omit "suspect's, offender's or volunteer's legal representative". 17
Insert instead "legal representative of the suspect, offender, volunteer or 18
person under 10 years of age". 19
[19] Section 101 Material required to be made available to suspect, offender, 20
volunteer or person under 10 years of age 21
Omit "suspect's, offender's or volunteer's legal representative (if any)" from 22
section 101 (1) (a). 23
Insert instead "legal representative (if any) of the suspect, offender, volunteer 24
or person under 10 years of age". 25
[20] Section 101 (2) (b) 26
Omit "suspect's, offender's or volunteer's interview friend or legal 27
representative". 28
Insert instead "interview friend or legal representative of the suspect, offender, 29
volunteer or person under 10 years of age". 30
[21] Section 111 Act does not apply to persons under 10 31
Omit the section. 32
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Schedule 1 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
[22] Schedule 2 Savings, transitional and other provisions 1
Insert at the end of clause 1 (1): 2
Crimes (Forensic Procedures) Amendment Act 2009 3
[23] Schedule 2, Part 6 4
Insert after Part 5: 5
Part 6 Provisions consequent on enactment of 6
Crimes (Forensic Procedures) Amendment 7
Act 2009 8
13 Application of Part 8A 9
Part 8A applies to a forensic procedure carried out after the 10
commencement of that Part and so applies regardless of when the 11
offence to which the forensic procedure relates was committed. 12
14 Existing convictions set aside or quashed 13
Section 87, as substituted by the Crimes (Forensic Procedures) 14
Amendment Act 2009, extends to a conviction set aside or 15
quashed before the commencement of that substitution. 16
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