Copyright © Government of South Australia 2002
All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Copyright. The Copyright Act, 1968 (Cth) permits certain reproduction and publication of South Australian legislation. In particular s. 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For the reproduction or publication beyond that permitted by the Act, permission should be sought in writing from the South Australian Attorney-General's Department. Requests in the first instance should be addressed to the Attorney-General.

CRIMINAL LAW (FORENSIC PROCEDURES) BILL

Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to provide for carrying out forensic procedures to obtain evidence relevant to the investigation of criminal offences; to make provision for a DNA database system; to make related amendments to the Child Sex Offenders Registration Act 2006 and the Summary Offences Act 1953; to repeal the Criminal Law (Forensic Procedures) Act 1998; and for other purposes. Read a first time.

The Hon. M.J. ATKINSON: I move:

That this bill be now read a second time.

The bill will regulate the carrying out of forensic procedures to obtain evidence in the investigation of criminal offences and provide for the continuation of the DNA database. It will replace the Criminal Law (Forensic Procedures) Act 1998.

Forensic procedures include the taking of prints of the hands, fingers, feet or toes; the taking of an impression or cast of part of a person's body; an examination of a part of a person's body; and the taking of a sample of biological or other material from a person's body. DNA testing is one of the most important investigatory tools provided for under the Act. DNA testing has the proved capacity to assist in solving serious crimes such as murder and rape. In 2002 the govern­ment changed the law to require prisoners in South Australia to be DNA tested, and it expanded testing to specified summary offences. Since July 2003 the expanded testing has resulted in more than 25 000 samples from crime scenes and offenders being added to the database. At the 2006 election the government pledged that DNA tests would be conducted on—

×offenders who assault another person;

×offenders stalking other persons;

×offenders who damage other persons' property irrespec­tive of the value;

×offenders who are found unlawfully in possession of other people's property;

×people over the age of 18 years who vandalise and graffiti property;

×people in the possession of illicit drugs.

Since the election, the Commissioner of Police has put a submission to the government arguing for amendments to the act to simplify and clarify its operation. Importantly, he has proposed extended testing that would allow the testing of suspects for any summary offence for which imprisonment is a penalty. He has also recommended permanent retention of suspects' forensic material. The Kapunda Road Royal Commissioner also recommended that the act be simplified. Both the Commissioner's submission and the report of the Kapunda Road Royal Commissioner suggest that problems with the operation of the act have been caused by its com­plexity. The government has taken note of these comments and, in consultation with the Commissioner of Police, has completed a comprehensive review of the act. As the amendments proposed represent a major revision of the act, a bill for a new act has been drafted, rather than an amending bill.

The bill goes further than the government's election pledge and will allow forensic procedures to be carried out on a person suspected of having committed an indictable offence or any summary offence punishable by imprisonment. The bill also deals with legal, operational and administrative matters raised by the Commissioner. The bill reduces the categories of procedures, allows for the authorisation of procedures by senior police officers rather than judicial authorisation and provides for the permanent retention of DNA profiles taken from suspects. The bill also removes the legislative impediment to the inter-jurisdictional matching of DNA through the National Criminal Investiga­tion DNA database. I seek leave to have the balance of my remarks inserted in Hansard without my reading it.

#45 Leave granted.

Forensic procedures.

The Bill defines “forensic procedure” as 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 body (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 body.

This is the same definition as used in the current Act.

The Bill continues to distinguish between forensic procedures and intrusive forensic procedures. An intrusive forensic procedure is defined as:

(e) a forensic procedure that involves exposure of, or contact with the genital or anal area, the buttocks or, in the case of a female, the breasts; or

(f) a forensic procedure involving intrusion into a person's mouth (other than a procedure consisting of the taking of a sample by buccal swab); or

(g) the taking of a sample of blood (other than the taking of a sample by fingerpick for the purpose of obtaining a D.N.A. profile).

Fingerprints and Simple identity procedure

The taking of fingerprints from a suspect is currently authorised under section 81(4) Summary Offences Act 1953 where the person is “in lawful custody on a charge of having committed an offence” and by way of a forensic procedure authorised under section 15(1)(a) or (b) of the Criminal Law (Forensic Procedures) Act. This means, that where a person is not under arrest or does not consent to providing his or her prints as a suspect, the police need an order authorising the fingerprints to be taken under section 15(1)(a) or (b).

The Bill introduces a new concept, that of a “simple identity procedure”. This covers both the taking of fingerprints and the taking of forensic material by buccal swab or fingerprick. The rules applying to the taking of forensic material by buccal swab or fingerpick will also apply all simple identity procedures, simplifying the process that need to be followed by police.

Retention of lawfully-obtained forensic material

Under the current Act, the Commissioner must destroy forensic material that has been lawfully obtained under a category 3 (suspects) procedure where:

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

× proceedings for an offence either:

× are not commenced against the person within two years after the material is obtained; or

× are commenced against the person within two years after the material is obtained, but the proceedings are discontinued, or the person is not, as a result of the proceedings, a person to the offenders procedures apply.

A recent decision of the District Court and the Auditor-General's Supplementary Report for the year ended 30 June 2005 titled Government Management and the Security Associated with Personal and Sensitive Information highlighted the difficulty for police with the existing requirements.

The Bill no longer requires the destruction of forensic material obtained from suspects. This will mean that suspects D.N.A. will be able to be retained indefinitely.

The United Kingdom has already legislated to allow permanent retention of forensic material obtained from suspects. Since the change in the U.K. laws, it is estimated that around 198 000 profiles that previously would have been removed have been retained on the database helping to solve a range of crimes including 88 murders, 45 attempted murders, 116 rapes, 62 sexual offences, 91 aggravated burglaries and 94 supply of controlled drugs.

The Government believes that the D.N.A. database will continue to play a major part in the prevention, detection and investigation of crime, including terrorism. The Government has already acted to allow D.N.A. testing of prisoners. As can be seen from the U.K. experience, the removal of the requirement to destroy forensic material taken from suspects should further increase the effectiveness of the database in preventing and detecting crime.

The Bill includes a transitional provisions so that profiles from suspects and offenders held on the database when the new Act comes into operation will be able to be retained indefinitely.

A consequential amendment to the Summary Offences Act will allow for the permanent retention of fingerprints and other samples taken under section 81(4).

Volunteer and Consent Categories

Currently, the legislation provides for two types of forensic procedures that can be taken with the subject's consent. category 1 (Consent) procedures are outlined in Part 2A of the Act and category 2 (Volunteer procedures) are dealt with in Part 2B.

D.N.A. profiles obtained from category 1 procedures are not stored on the database, whereas profiles derived from a category 2 procedure can be stored on the database. category 2 procedures can be taken for limited or unlimited purposes.

An example of what was contemplated for category 1 is the case where a forensic sample is taken from a victim e.g. a victim of a child sexual assault or a rape. The current framing of the Act did not intend that forensic material collected from category 1 volunteers would be put on the database. An example of a category 2 situation is where a person freely consents to go on the data base for elimination from one or more crime scenes, or for unlimited purposes.

Before taking a category 1 procedure, police must assess whether the subject of the procedure is “competent to consent”. A person is competent to consent to a forensic procedure under Part 2A 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.

A person is competent to consent to a category 2 (volunteer) procedure if they are not a protected person i.e, they are of or above 18 years and physically and mentally capable of giving informed consent to a forensic procedure.

The reason for the different ages is that the age of consent for medical treatment under the Consent to Medical Care and Palliative Treatment Act 1995 is 16 years old. The age of 18 years was used for category 2 as it is not about medical treatment but criminal investigation.

The Commissioner has recommended that the Act be amended. He argues that there is a need to simplify the consent categories and to remove the confusion that is created by a child over 16 years old (capable of consenting for category 1 procedures) being incapable of providing consent to a category 2 procedure because they are a ‘protected person'. He suggests that any forensic procedure involving a volunteer should require consent by:

× the volunteer, provided the volunteer is over 18 years of age and not incapable of consenting owing to a physical or mental incapacity to provide informed consent; or

× the volunteer's parent, guardian or carer if the volunteer is incapable of providing consent.

The Bill removes the distinction between the two categories. A volunteers procedure will be able to be carried out where the relevant person consents to the procedure or a senior police officer authorises the carrying out of the procedure. A relevant person will be the person on whom the procedure is to be carried out, or the in the case of a protected person, the closest available next of kin. A protected person will be a child (under 18 years) or a person physically or mentally incapable of understanding the nature and consequence of a forensic procedure.

A senior police officer will only be able to authorise the carrying out of a forensic procedure on a protected person if satisfied that it is impractical or inappropriate to obtain consent to the procedure from the relevant person because of the difficulty of locating or contacting them or because the person or a person related to, or associated with, the relevant person is under suspicion for a criminal offence. The senior police office must also be satisfied that the carrying out of the procedure is justified in the circumstances of the case.

The volunteers procedure in Part 2 Division 1 of the Bill does not deal with the issue of storage of a D.N.A. profile on the volunteers index. That is dealt with separately in clause 42. As now, a D.N.A. profile cannot be stored on the volunteers (limited) index or volunteers (unlimited) index unless the relevant person has given informed consent. The clause sets out the information to be provided to the person before consent is given. A person has the right to refuse to consent to such storage or can impose conditions limiting the period for which such storage can occur and prohibiting the comparison of that D.N.A. profile with D.N.A. profiles stored on other specified indices.

The Bill will continue to require destruction of forensic material obtained from a volunteer procedure.

Serious offences

Under the current Act, D.N.A. testing can be compelled against an offender who is:

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

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

(c) convicted of a serious offence by a court; or

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

A serious offence means—

(e) an indictable offence or a summary offence listed in the Schedule; or

(f) an offence of attempting to commit such an offence; or

(g) an offence of aiding, abetting, counselling or procur­ing the commission of such an offence; or

(h) an offence of conspiring to commit such an offence; or

(i) an offence of being an accessory after the fact to such an offence.

Thirteen summary offences, including using a motor vehicle without consent, possession and use of a firearm, assault police, and trespassing have been listed in the Schedule. The Government's pledge would have extended the D.N.A. testing regime by the inclusion in the Schedule of additional summary offences, including assault on another person; property offences irrespective of the value and graffiti and vandalism offences where the offender is over the age of 18 years.

The Commissioner has advised that the definition of serious offence unnecessarily limits the scope of the Act. By way of example, assaulting police contrary to section 6(1) of the Summary Offences Act 1953 is a scheduled summary offence. The offences of resisting arrest or hindering police, however, are not, even though all three offences often form part of a course of behaviour. The Commissioner has submitted that the definition of serious offence should be amended to include all summary offences for which a term of imprisonment may be imposed.

The Government has reviewed this matter and agrees. It notes that the summary offences listed in the existing Schedule already range in punishment from 3 months to 2 years imprisonment. The scheduling of offences is an arbitrary approach and makes it more complicated for police. As such, the definition of “serious offence” in the Bill, extends to any indictable offence or a summary offence that is punishable by imprisonment. The Bill will also remove the distinction in the current Act between serious offences and pre­scribed offences.

Authorisations by Senior Police officers

Clause 13 of the Bill provides that a suspects procedure may be carried out if the person is suspected of a serious offence and either the procedure is a simple identity procedure or the procedure is authorised by an order under the Division.

One of the major changes to the suspects procedures is the authorisation procedure for the making of the orders. The Act currently provides for a scheme of interim and final orders. The appropriate authority for making the order depends on the type of proceeding. A magistrate is an appropriate authority for an interim order. A final order can be made by the Magistrates Court or, in the case of a child, the Youth Court. The Act recognises a senior police officer as an appropriate authority for an interim or a final order if:

× the officer is not involved in the investigation for which the authorisation is sought;

× the respondent is in lawful custody;

× the respondent is not a protected person; and

× the forensic procedure for which an authorisation is sought is non-intrusive.

A senior police officer is defined in the Act as a police officer of or above the rank of sergeant.

The Commissioner believes that the procedures set out in the Act are too complicated and lead to unnecessary delay. He submits that a senior police officer should be able to approve an order for an intrusive or intimate forensic procedure and orders where the suspect is not in custody.

The Government has adopted this approach in the Bill. The role of the magistrate and court is replaced by a senior police officer. The definition of senior police officer is, however, amended so that it is limited to a person of, or above, the rank of inspector rather than a sergeant.

The procedure to be followed in applying for, and making an order is set out in the Bill. The senior police officer must be satisfied that there are reasonable grounds to suspect that the respondent has committed a serious offence and that the forensic material could produce material of value to the investigation, The senior police office must also weigh up the public interest in obtaining evidence tending to prove or disprove guilt the respondent's guilt against the public interest in ensuring that private individuals are protected from unwanted interference.

The Bill recognises the right of a person to be present and to make submissions at an application to have legal representation and, where the suspect is a “protected person”, an appropriate representa­tive.

Clause 17 of the Bill provides for applications in cases of special urgency where the respondent cannot be located and evidence may be lost or destroyed. An order made as result of such an application only remains in force for a period of 12 hours. If the procedure is not carried out in that time, a formal order would be required.

Clause 54 also allows a senior police officer to authorise the carrying out of a forensic procedure on a deceased person suspected of a serious offence. This will clarify the extent to which police are entitled to seek biological material or D.N.A. profiles from deceased persons.

Offenders procedure

Division 3 of Part 2 deals with the offenders procedure. The Bill will allow a simple identity procedure to be conducted on a person who is convicted of, or declared liable to supervision for, a serious offence. It will also allow the testing of a person serving a term of imprisonment, detention or home detention for an offence, or being detained as a result of being declared liable to supervision.

General provisions

Part 3 of the Bill deals with the carrying out of forensic proced­ure. It continues to recognise the right of a person to be treated humanely and with a minimum of physical harm, embarrassment or humiliation, and to have a chosen medical practitioner present at most procedures. There is also a right for a person to be assisted by an interpreter. Clause 25 of the Bill limits the situations where an audiovisual recording must be made to intrusive procedures.

Retention and assimilation orders

The Bill will continue to provide for retention and assimilation orders. As now, retention orders deal with the situation where a person is a protected person, consent has been given by the parent or guardian, the forensic sample has been taken and the parent or guardian then requires the sample to be destroyed. A senior police officer may make an order for retention where he or she is satisfied that the person who gave the consent, or a person related or associated with that person is suspected of a serious offence and there are reasonable grounds to suspect that the forensic material would be of probative value in the investigation of the suspected offence and the order is justified in all the circumstances.

Assimilation Orders deal with the situation where a volunteer becomes a suspect. The Act already acknowledges that, in such cases, it would not be sensible to require police to make another application to obtain the same forensic material. The Bill will continue to provide for the conversion of material obtained as a result of a volunteer procedure into material obtained by way of a suspects procedure. A senior police office will be able to make such an order.

The D.N.A. database

Part 5 of the Bill deal with the D.N.A. database system. The database system will continue to include:

× a crime scene index; and

× a missing persons index; and

× an unknown deceased persons index; and

× a volunteers (unlimited purposes) index; and

× a volunteers (limited purposes) index; and

× statistical index; and

× any other index prescribed by regulation.

However, the change in destruction requirements referred to above, will allow the current category 3 (Suspects) and category 4 (Offenders) to be combined into a single Suspect/Offender Index.

The Bill regulates the storage of information on the database and access and use of the D.N.A. database system. As now, the Bill sets out criminal offences, punishable by a maximum of $10 000 or two years imprisonment including:

× storing identifying D.N.A. information obtained under the Act on a database other than the database set up by the Act or a corresponding law or doing so temporarily for the purpose of administering the database;

× supplying a forensic sample for the purpose of storing a D.N.A. profile on the database or storing a D.N.A. profile on the database where those actions are not authorised by the Act;

× not ensuring the destruction of information in the D.N.A. database system where the Act requires it to be destroyed;

× accessing information stored on the D.N.A. database otherwise than in accordance with rules authorising access;

× disclosing information stored on the D.N.A. database otherwise than in accordance with authorised disclosure.

With the changes to the suspects index, the matching rules under the Bill are less complicated. This has allowed the matching table to be replaced with a provision that restricts the use of a D.N.A. profile on the volunteers (limited purposes) index.

Arrangements with other jurisdictions

The Bill will allow arrangements to be made with the Minister responsible for the administration of a corresponding law of the Commonwealth to allow the integration of the D.N.A. database with other databases kept under corresponding laws to form the National Criminal Investigation D.N.A. database (N.C.I.D.D.).

The provision differs from the provision in the current Act. This is because there has been some doubt about the legal basis for the national database. Following consideration of this matter by the Standing Committee of Attorneys-General, the Commonwealth agreed to amend its legislation to clarify that the national D.N.A. database is legally a combination of each of the different databases of the States and Territories and the Commonwealth. The South Australian provision reflects this arrangement.

The Bill also allows Ministerial arrangements with other jurisdictions with corresponding laws dealing with the exercise of functions and powers by police officers and the registration of orders.

Independent Audits by the Police Complaints Authority

Importantly, the Bill also introduces a requirement for the Police Complaints Authority to conduct an annual audit to monitor compliance with the Act. Regular auditing of the operation of the D.N.A. database will help to ensure compliance with the legislative requirements imposed by the Act.

These audit arrangements would be additional to the technical audit requirements imposed on F.S.S.A. by the National Association of Testing Authorities (N.A.T.A).

The report of the audit would be presented to the Attorney-General and tabled in Parliament. The will be an important safeguard in the operation of the Act.

Other amendments

The Bill also:

× allows the taking of another sample if the first sample is insufficient, unsatisfactory, lost, contaminated or if the analysis is unreliable;

× provides for evidentiary certificates to certify when and how a forensic procedure was carried and how the forensic material was dealt with;

× provides for a quality assurance register. The register will be a screening index and will not be used for matching against any of the other indices;

× deals with the effect of non-compliance with the Act on the admissibility of evidence.

The Bill differs from the current Act in that the requirement to make an audio-visual recording of a forensic procedure will be limited to intrusive forensic procedures on a suspect and intrusive forensic procedures where the person request that an audiovisual record be made.

The Bill also removes the requirement on SAPOL to provide the results of the analysis of forensic material. The Commissioner argues that the provision results in information being sent to people who do not want the information and this is a waste of resources. Clause 32 of the Bill would ensure that the person from whom the forensic material is removed would have access to a part of the material sufficient for analysis. The Bill also removes the requirement set out in section 41 of the Act to provide access to photographs taken of part of a person's body. The Commission argues that these require­ments are unnecessary. A photograph taken under section 41 could be obtained under the Freedom of Information Act. Furthermore, if the person is prosecuted, the photographs must be disclosed by the prosecution to the defence.

This Bill is an important measure. It has been drafted taking into account the legal, operational and administrative matters raised by the Commissioner. The Bill will assist police to use forensic procedures and, in particular, D.N.A. evidence, as a tool in criminal investigation. It will simplify the procedures for carrying out forensic procedures and should make it easier for operational police to work with the provisions.

Although the Bill has been the subject of extensive consultation with the Commissioner and his officers, I want to provide the opportunity for wider consultation. By introducing the Bill today, the Bill will lie on the table until Parliament resumes. This will give interested parties, such as the legal profession, victims groups and the Commissioner for Victims Rights, the opportunity to provide comments on the Bill during the break.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines various terms used in the measure. In particular, a forensic procedure is defined to mean—

× the taking of handprints, fingerprints, footprints or toeprints; or

× an (external) examination of the suspect's body; or

× the taking of a sample of biological or other material from a part of the body; or

× the taking of an impression or cast of a part of a person's body.

4—Application of Act

This clause specifies circumstances in which the Act does not apply to a forensic procedure.

5—Extra-territorial operation

This clause provides for extra-territorial operation.

Part 2—Authorisation of forensic procedures

Division 1—Volunteers procedures

6—Interpretation

This is an interpretation provision for the purposes of the Division.

7—Volunteers procedures

This clause sets out what constitutes a volunteers procedure and specifies that such procedures may be authorised by consent under clause 8 or by the giving of a police authorisa­tion under clause 9.

8—Authorisation by consent of relevant person

This clause makes provision in relation to the giving of consent to a volunteers procedure.

9—Authorisation by senior police officer

This clause allows a senior police officer to authorise the carrying out of a forensic procedure on a protected person if the officer is satisfied that it is impracticable or inappropriate to obtain consent to the procedure from the relevant person (for reasons specified in the clause) and the carrying out of the procedure is justified in the circumstances of the case.

10—Withdrawal of consent

This clause provides for the withdrawal of a consent given to a volunteers procedure and deals with questions of admissi­bility of evidence where consent is withdrawn.

11—Volunteers procedure not to be carried out on protected person who objects to procedure

This clause—

× provides that a volunteers procedure is not to be carried out on a protected person who objects to or resists the procedure and requires that fact to be explained to the protected person before the procedure is commenced; and

× deals with questions of admissibility of evidence.

The provision does not, however, apply in relation to a protected person who is under 10 or who does not appear to be capable of responding rationally to information.

Division 2—Suspects procedures

12—Interpretation

This is an interpretation provision for the purposes of the Division.

13—Suspects procedures

This clause sets out what constitutes a suspects procedure. For a forensic procedure to be authorised under the Division, the person must be suspected of a serious offence and the procedure must be either authorised by order under the Division or must consist only of a simple identity procedure (which is authorised without the need to obtain an order). A serious offence is defined in clause 3 as an indictable offence or a summary offence that is punishable by imprisonment. A simple identity procedure is defined in clause 3 as a proced­ure consisting only of fingerprinting or carrying out a mouth swab or fingerprick for DNA purposes.

14—Application for order

This clause sets out the procedure for making an application for an order authorising a suspects procedure.

15—Conduct of hearing

An order may be made by a senior police officer on the basis of an informal hearing conducted in such manner as the senior police officer thinks fit.

16—Respondent's rights at hearing of application

This clause sets out the rights of the respondent (ie. the person on whom the procedure is proposed to be carried out) to make representations at the hearing.

17—Applications of special urgency

This clause allows for the making of an order in the absence of the respondent where the respondent has not yet been located and the procedure may need to be carried out as a matter of urgency when the respondent is located.

18—Making of order

This clause sets out requirements for the making of an order authorising a suspects procedure.

Division 3—Offenders procedures

19—Offenders procedures

This provision authorises the carrying out of a simple identity procedure on a person who is serving a term of imprisonment, detention or home detention in relation to an offence; is being detained as a result of being declared liable to supervision (under Part 8A of the Criminal Law Consolidation Act 1935) by a court; is convicted of a serious offence by a court; or is declared liable to supervision by a court dealing with a charge of a serious offence.

Part 3—Carrying out forensic procedures

Division 1—General provisions on carrying out forensic procedures

20—Forensic procedures to be carried out humanely

This clause imposes a general duty to carry out a forensic procedure humanely and to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs or inflicting unnecessary physical harm, humiliation or embarrassment. The clause also requires that a forensic procedure must not be carried out in the presence or view of more persons than are necessary and that, if reasonably practicable, a procedure involving exposure of, or contact with, the genital or anal area, the buttocks or, in the case of a female, the breasts must be carried out by a person of the same sex.

21—Right to be assisted by interpreter

This clause provides a right to be assisted by an interpreter.

22—Duty to observe relevant medical or other profession­al standards

A forensic procedure must be carried out consistently with appropriate medical standards or other relevant professional standards.

23—Who may carry out forensic procedure

A forensic procedure must be carried out by a registered medical practitioner (or if the procedure involves the mouth or teeth, a registered dentist—see the definition of medical practitioner in clause 3) or a person qualified as required by the regulations.

24—Right to have witness present

This clause provides for the presence of witnesses during a forensic procedure in certain circumstances.

25—Audiovisual record of intrusive procedures to be made

An audiovisual recording of an intrusive forensic procedure must be made if the procedure is a suspects procedure or if it is a volunteers procedure and the volunteer has requested the making of a recording. The clause also provides for the viewing of the record or the provision of a copy of the record (on payment of any prescribed fee).

26—Exemption from liability

This clause provides an exemption from liability for a person who carries out, or assists in carrying out, a forensic proced­ure.

Division 2—Special provisions relating to suspects and offenders procedures

27—Application of Division

This Division only applies to suspects and offenders proced­ures.

28—Directions

Directions may be issued by a police officer to secure the attendance of a person who is not in custody at a specified time and place for the carrying out of a suspects or offenders procedure. Failure to comply with the directions may result in the issue of a warrant for the person's arrest.

29—Warnings

This clause provides for the giving of warnings related to clause 30 and clause 31.

30—Use of force

This clause authorises the use of reasonable force to carry out a suspects or offenders procedure or protect evidence obtained from such a procedure.

31—Obstruction

It is an offence to intentionally obstruct or resist the carrying out of a suspects or offenders procedure (punishable by 2 years imprisonment).

Part 4—How forensic material is to be dealt with

Division 1—Access to forensic material

32—Person to be given sample of material for analysis

If forensic material is removed from a person's body as a result of a suspects procedure or an offenders procedure, a part of the material, sufficient for analysis must be seta aside for the person and if the person expresses a desire to have the material analysed, reasonable assistance must be given to the person to ensure that the material is protected from degrada­tion until it is analysed.

Division 2—Analysis of certain material

33—Hair samples

Hair samples must not be used for the purpose of obtaining DNA profiles except on request.

Division 3—Retention and assimilation orders

34—Interpretation

This clause is an interpretation provision for the purposes of the Division.

35—Order for retention of forensic material obtained by carrying out volunteers procedure on protected person

This clause provides for the making of an order (a retention order) by a senior police officer that would allow the retention of material obtained as a result of a volunteers procedure carried out on a protected person in circumstances where the material would otherwise have to be destroyed. The order can be made where the person who gave consent, or a person related to or associated with him or her, is suspected of a serious offence, there are reasonable grounds to suspect that the relevant material could be of probative value in relation to the investigation of the suspected offence and the order is justified in all the circumstances.

36—Order for forensic material obtained by volunteers procedure to be treated as if obtained by suspects procedure

This clause provides for the making of an order (an assimila­tion order) by a senior police officer that would allow material obtained as a result of a volunteers procedure to be treated as if it had been obtained from a suspects procedure. This order may be made where there are reasonable grounds to suspect that the person on whom the procedure was carried out has committed a serious offence and either that the forensic material may be of value to the investigation of the suspected offence or the material consists only of material obtained for a DNA profile.

37—General provisions relating to applications under this Division

This clause sets out general matters relating to the making of a retention order or an assimilation order.

Division 4—Destruction of certain forensic material

38—Destruction of forensic material obtained by carrying out volunteers procedure

This clause provides for the destruction of material obtained from a volunteers procedure on request.

Part 5—The DNA database system

39—Interpretation

This clause defines certain terms used in Part 5.

40—Commissioner may maintain DNA database system

This clause allows the Commissioner of Police to maintain a DNA database system and enter into arrangements with other jurisdictions for the exchange of information or the integration of the database with NCIDD.

41—Storage of information on DNA database system

This clause creates offences connected with—

× storage of 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 (the penalty for which is $10 000 or imprisonment for 2 years);

× storage of a DNA profile on the DNA database system in circumstances in which that storage is not authorised by this Act (or a corresponding law) (the penalty for which is also $10 000 or imprisonment for 2 years).

42—Specific consent required for storage of DNA profile on a volunteers index

This clause sets out a special consent procedure for the storage of a DNA profile obtained as a result of a volunteers procedure on the DNA database system.

43—Storage of information on suspects/offenders index following assimilation order

This clause is consequential to clause 36.

44—Access to and use of DNA database system

This clause deals with access to and use of the DNA database system and creates an offence punishable by $10 000 or imprisonment for 2 years for unauthorised access.

45—Removal of information from DNA database system

This clause requires the Commissioner of Police to ensure that information is removed from the DNA database system when destruction is required under this Act (see clause 38) or under a corresponding law. In addition, a DNA profile of a missing person is to be removed from the system if the missing person is found and requests removal. 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 punishable by $10 000 or imprisonment for 2 years.

Part 6—Evidence

46—Effect of non-compliance on admissibility of evidence

If a police officer or other person with responsibilities under the measure contravenes a requirement of the measure, evidence obtained may be inadmissible in accordance with this clause.

47—Admissibility of evidence of denial of consent, obstruction etc

Evidence that a person refused or failed to give consent, or withdrew consent, to a forensic procedure is inadmissible, without the consent of the person, in any criminal proceed­ings against the person but evidence that a person obstructed or resisted the carrying out of a suspects procedure or an offenders procedure authorised under this Act is admissible in any criminal proceedings against the person subject to the ordinary rules governing admissibility of evidence.

48—Evidentiary certificates

This clause provides for evidentiary certificates to facilitate proof of certain matters specified in the clause.

Part 7—Miscellaneous

49—Confidentiality

A person who has, or has had, access to information obtained under the measure or information stored on the DNA database system must not disclose the information except in accordance with this clause. The penalty for unauthorised disclosure is $10 000 or imprisonment for 2 years.

50—Restriction on publication

A person must not intentionally or recklessly publish a report of proceedings under the measure containing the name of a person suspected of a serious offence, or other information tending to identify the person, unless the person consents to the publication or has been charged with the suspected offence or a related serious offence. The penalty for this offence is $5 000 or imprisonment for 1 year.

51—State Records Act 1997 not to apply

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

52—Forensic material lawfully obtained in another jurisdiction

Forensic material lawfully obtained in another jurisdiction may be retained and used in this State in accordance with the measure despite the fact that the material was obtained in circumstances in which it could not be obtained under the measure.

53—Subsequent procedure where insufficient material obtained

This clause provides for the repetition of a forensic proced­ure, where insufficient material has been obtained.

54—Power to require forensic procedure on deceased person

This clause sets out a procedure whereby a senior police officer may, if satisfied that a deceased person is suspected of a serious offence, authorise the carrying out of a forensic procedure on the body of the deceased person.

55—Arrangements with other jurisdictions

This clause provides for arrangements to be made with other jurisdictions relating—

× to the exercise of functions or powers under this Act by police officers of the jurisdiction in which the corresponding law is in force; and

× the exercise of functions or powers under a corresponding law by police officers of this State.

56—Compliance audits

This clause provides for annual compliance audits by the Police Complaints Authority.

57—Regulations

This clause is a regulation making power.

Schedule 1—Related amendments, repeal and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

2—Interpretation

This is an interpretation provision.

Part 2—Related amendments

Division 1—Amendment of Child Sex Offenders Registra­tion Act 2006

3—Repeal of section 29

This clause repeals section 29 of the Child Sex Offenders Registration Act 2006 (which will no longer be necessary because this measure will not apply to procedures under that Act by virtue of clause 4).

Division 2—Amendment of Summary Offences Act 1953

4—Amendment of section 81—Power to search, examine and take particulars of persons

This clause deletes section 81(4f) of the Summary Offences Act 1953 (which required destruction of material obtained under section 81(4) in certain circumstances).

Part 3—Repeal

5—Repeal of Criminal Law (Forensic Procedures) Act 1998

This clause repeals the Criminal Law (Forensic Procedures) Act 1998.

Part 4—Transitional provisions

6—Retention of fingerprints etc obtained in accordance with Summary Offences Act 1953

This clause allows the retention of fingerprints and other matter referred to in section 81(4) even where that matter was obtained prior to the repeal of section 81(4f).

7—Material obtained in accordance with repealed Act

This clause provides for forensic material obtained as a result of a forensic procedure authorised under the repealed Act to be taken to be forensic material obtained as a result of a forensic procedure authorised under the measure.

8—Retention and assimilation orders under repealed Act

This clause deals with retention and assimilation orders made under the repealed Act and provides that they are to be taken to be orders under this measure.

9—Continuation of DNA database system

This clause continues the DNA database system established under the repealed Act.

10—Validation provision

This clause provides that for the purposes of any proceedings, contravention of a requirement of section 40, 44C, 44D or 46C of the repealed Act in relation to a forensic procedure, forensic material or a DNA profile derived from forensic material will be taken not to be contravention of a require­ment of the repealed Act and will not affect the admissibility of any evidence obtained from, or relating to, the procedure, material or DNA profile.

Mr HANNA secured the adjournment of the debate.