Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Crimes (Forensic Procedures) Act 2000 (the
Principal Act):

(a) to prohibit the carrying out of forensic procedures on a child who is under the
age of 10 years, unless ordered by a Magistrate (or otherwise authorised under
the Principal Act) and carried out in accordance with the Principal Act, and

(b) to require police to inform a volunteer (and, if relevant, the parent or guardian
of a volunteer who is a child aged 10 years or more or an incapable person)
that a forensic procedure may produce evidence that may be used in court,
including evidence that may be used against the volunteer, as part of obtaining
the informed consent of the volunteer or parent or guardian of the volunteer,
and

(c) to make it clear that a Magistrate may, in certain circumstances, order that
forensic material or information obtained from a volunteer may be retained if
either the volunteer, or the parent or guardian of the volunteer, withdraws
consent to the retention of that material or information, and

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Crimes (Forensic Procedures) Amendment Bill 2009
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(d) to provide that forensic material taken, by consent or by order of a Magistrate,
from a suspect who is subsequently convicted of an offence must be destroyed
if the suspect’s conviction is set aside or quashed, unless there is a reasonable
prospect of a retrial or rehearing, and

(e) to limit the use of the DNA profile of a volunteer who is a child aged 10 years
or more or incapable person to the purpose for which the DNA profile was
placed on the DNA database system and to provide that such a DNA profile
must not be matched against any index on the DNA database system, unless
otherwise ordered by a Magistrate, and

(f) to make other minor and consequential amendments.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 amends the State Records Regulation 2005 to except proposed sections
81D (2) and 81M (3) from the operation of section 21 of the State Records Act 1998
so that the requirements to destroy the information specified in those proposed
sections prevail over the requirements of that Act.

Schedule 1 Amendment of Crimes (Forensic
Procedures) Act 2000 No 59
Destruction of forensic material
Schedule 1 [3] amends section 3 (5) of the Principal Act to make it clear that a person
who is required to destroy forensic material must remove any information that relates
any DNA profile derived from that material to a person whose DNA it describes from
the DNA database system, as well as destroying the material itself.

Currently, section 87 of the Principal Act provides that if a forensic procedure is
carried out on a person convicted of an offence and that conviction is quashed, the
forensic material taken from that person should be destroyed as soon as practicable
after the time limit for an appeal has elapsed. Schedule 1 [10] extends the application
of that section to suspects who are subsequently convicted of an offence and provides
that forensic material obtained from persons to whom that section applies should not
be destroyed if there is a reasonable prospect of a retrial or rehearing. The proposed
amendment also extends that section to both the quashing and setting aside of
convictions.

Carrying out of forensic procedures on volunteers
Section 77 of the Principal Act specifies those matters about which a police officer
must inform a volunteer, or parent or guardian of a volunteer, in order for that
volunteer, or parent or guardian, to give informed consent to the carrying out of a

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Crimes (Forensic Procedures) Amendment Bill 2009
Explanatory note
forensic procedure on a child or an incapable person. Schedule 1 [6] makes it clear
that a police officer must inform a volunteer, or parent or guardian of a volunteer, that
a forensic procedure carried out on the volunteer may produce evidence that may be
used in a court of law, including evidence that may be used against the volunteer.

Section 81 of the Principal Act provides that a Magistrate may, in certain
circumstances, order that forensic material or information obtained from carrying out
a forensic procedure be retained if a volunteer withdraws consent to the retention of
that material. Schedule 1 [7] makes it clear that section 81 of the Principal Act
applies whether the withdrawal of consent is made by the volunteer or by a parent or
guardian of a child or incapable person who is a volunteer. Schedule 1 [8] makes a
consequential amendment.

Carrying out of forensic procedures on persons under 10 years of age
Currently, the Principal Act does not apply to persons under 10 years of age.

Schedule 1 [9] inserts proposed Part 8A into the Principal Act to prohibit the
carrying out of forensic procedures within the meaning of the Act on persons under
10 years of age except in limited circumstances. Proposed section 81A inserts a
definition of child for the purposes of proposed Part 8A, which means a person under
10 years of age.

Proposed section 81B provides that if the parent or guardian of a child is a suspect in
the investigation of an offence in relation to which a forensic procedure is proposed
to be carried out, a reference to the parent or guardian of a child in proposed Part 8A
is to be read as a reference to firstly a parent or guardian of the child who is not a
suspect in relation to the offence or, secondly, the closest available relative of the
child. That relative must not be a suspect in relation to the offence under
investigation, must be available at the relevant time and be at least 18 years of age.

Proposed section 81C authorises the carrying out of a forensic procedure for certain
purposes on a child with the informed consent of the parent or guardian of the child
or, if that consent cannot be obtained or is withdrawn, by order of a Magistrate under
proposed section 81F. The purposes for which a forensic procedure may be carried
out are those in relation to certain offences (for example, assault, kidnapping or
robbery) of which the child is a victim and to eliminate the child’s forensic material
from other forensic material found at a crime scene.

Proposed section 81D makes it clear that if the parent or guardian of a child
withdraws consent to the carrying out of a forensic procedure, the forensic procedure
is to be treated as a forensic procedure for which consent has been refused and the
forensic procedure is not to proceed except by order of a Magistrate under proposed
section 81F.

Proposed section 81F provides that a Magistrate may order the carrying out of a
forensic procedure on a child to investigate an offence, to assist in locating or
identifying a missing person or to assist in identifying a deceased person. The
Magistrate must take certain matters into consideration in determining whether to
make the order. An authorised applicant may apply for such an order in accordance
with proposed section 81E.

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Proposed sections 81A (4) and 81G–81L apply existing provisions in the Principal
Act to a child on whom a forensic procedure is being carried out, including
restrictions on who may carry out the forensic procedure, who may be present during
the forensic procedure, the recording of the forensic procedure and the making of
certain material and information available to the parent or guardian of the child.

Proposed sections 81M and 81N restrict the use and retention of forensic material
taken from a child under proposed Part 8A and any information obtained from the
analysis of that material. A Magistrate’s order is required to retain such material or
information if the parent or guardian of the child withdraws consent to the retention
of that material or information. Schedule 1 [1], [2], [4], [5], [11]–[14] and [16]–[21]
make amendments consequential on the insertion of proposed Part 8A. Schedule 1
[22] and [23] insert savings and transitional provisions consequent on the enactment
of the proposed Act.

Use of DNA profiles of certain volunteers
Schedule 1 [15] inserts proposed section 93A into the Principal Act to limit the use
of the DNA profile of a volunteer who is a child or incapable person to the purpose
for which the DNA profile was placed on the DNA database system and to provide
that such a DNA profile must not be matched against any index of the DNA database
system, unless otherwise ordered by a Magistrate.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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