New South Wales Consolidated Acts

CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 3

3 Interpretation

(1) Definitions In this Act:
"Aboriginal legal aid organisation" means an organisation that provides legal assistance to Aboriginal persons or Torres Strait Islanders, being an organisation prescribed by the regulations for the purposes of this definition.
"adult" means a person of or above 18 years of age.
"appropriately qualified", in relation to carrying out a forensic procedure, means:

(a) having suitable professional qualifications or experience to carry out the forensic procedure, or

(b) qualified under the regulations to carry out the forensic procedure.

"authorised applicant" for an order for the carrying out of a forensic procedure on a suspect means:

(a) the police officer in charge of a police station, or

(b) a custody manager within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 , or

(c) an investigating police officer in relation to an offence, or

(d) the Director of Public Prosecutions.

"authorised officer" has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002 .
"child" means a person who is at least 10 years of age but under 18 years of age.

Note: The Act does not authorise the carrying out of a forensic procedure on a person who is under 10 years of age (see section 111).

"correctional centre medical officer", in relation to a correctional centre or other place of detention, means any person appointed or acting as medical officer for the correctional centre or other place of detention.
"corresponding law" is defined in section 95.
"crime scene index" is defined in section 90.
"dentist" means a person registered, or taken to be registered, as a dentist under the Dentists Act 1989 .
"destroy" is explained in subsection (5).
"DNA database system" is defined in section 90.
"excluded volunteer" is defined in section 76A.
"exercise" a function includes perform a duty.
"forensic material" means:

(a) samples, or

(b) hand prints, finger prints, foot prints or toe prints, or

(c) photographs, or

(d) casts or impressions,

taken from or of a person’s body.
"forensic procedure" means:

(a) an intimate forensic procedure, or

(b) a non-intimate forensic procedure,

but does not include:

(d) any intrusion into a person’s body cavities except the mouth, or

(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Note: Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person.

"function" includes a power, authority or duty.
"incapable person" means an adult who:

(a) is incapable of understanding the general nature and effect of a forensic procedure, or

(b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.

"inform" is explained in subsection (4).
"informed consent" in relation to:

(a) a suspect-is defined in section 9, and

(b) a serious indictable offender-is defined in section 67, and

(b1) an untested former offender-is defined in section 75F, and

(c) a volunteer or parent or guardian of a volunteer-is defined in section 77.

"interview friend" is explained in section 4.
"intimate forensic procedure" means any of the following:

(a) an external examination of a person’s private parts,

(b) the carrying out on a person of an other-administered buccal swab,

(c) the taking from a person of a sample of the person’s blood,

(d) the taking from a person of a sample of the person’s pubic hair,

(e) the taking from a person of a sample of any matter, by swab or washing, from the person’s private parts,

(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person’s private parts,

(g) the taking from a person of a dental impression,

(h) the taking of a photograph of the person’s private parts,

(i) the taking from a person of an impression or cast of a wound from the person’s private parts.

"investigating police officer" means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.
"legal representative" of a suspect means an Australian legal practitioner acting for the suspect.
"missing persons index" is defined in section 90.
"non-intimate forensic procedure" means any of the following:

(a) an external examination of a part of a person’s body, other than the person’s private parts, that requires touching of the body or removal of clothing,

(b) the carrying out on a person of a self-administered buccal swab,

(c) the taking from a person of a sample of the person’s hair, other than pubic hair,

(d) the taking from a person of a sample (such as a nail clipping) of the person’s nails or of matter from under the person’s nails,

(e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person’s body, other than the person’s private parts,

(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person’s body, other than the person’s private parts,

(g) the taking from a person of the person’s hand print, finger print, foot print or toe print,

(h) the taking of a photograph of a part of a person’s body, other than the person’s private parts,

(i) the taking from a person of an impression or cast of a wound from a part of the person’s body, other than the person’s private parts,

(j) the taking of a person’s physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person’s body, other than the person’s private parts.

"nurse" means a registered nurse or an enrolled nurse, within the meaning of the Nurses Act 1991 .
"offender" means:

(a) a serious indictable offender, or

(b) a prescribed offender.

"offenders index" is defined in section 90.
"order" means:

(a) order of a Magistrate under section 24, or

(b) order of a Magistrate under section 27, or

(c) interim order of an authorised officer under section 32, or

(d) order of a court under section 74 or 74A, or

(d1) order of a court under section 75L, 75M or 75N, or

(e) order of a Magistrate under section 80 or 81.

"other-administered buccal swab" means a buccal swab carried out by someone other than the person on whom it is carried out.
"parent" of a child means a person who has parental responsibility for the child.
"parental responsibility", in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.
"participating jurisdiction" is defined in section 95.
"place of detention", in relation to a person the subject of a home detention order under the Crimes (Sentencing Procedure) Act 1999 , means the place at which the person resides pursuant to the order.
"police station" includes:

(a) a police station of a State or Territory, and

(b) a building that is occupied by members of the Police Service and that is nominated by the Commissioner of Police for the purposes of this paragraph, and

(c) a building occupied by the Australian Federal Police.

"prescribed offence" means:

(a) an indictable offence, or

(b) any other offence under a law of the State prescribed by the regulations for the purposes of this paragraph.

"prescribed offender" means a person who is convicted of a prescribed offence.
"private parts" means a person’s genital area, anal area or buttocks, and, in the case of a female or transgender person who identifies as a female, includes the person’s breasts.
"recognised transgender person" means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.
"recording" includes audio recording and video recording.
"responsible person", in relation to the DNA database system, means the person declared by the regulations to be the person responsible for the care, control and management of the system.
"sample" has a meaning affected by subsection (3).
"self-administered buccal swab" means a buccal swab carried out by the person on whom it is carried out.
"senior police officer" means a police officer of or above the rank of sergeant.
"serious indictable offence" means:

(a) an indictable offence under a law of the State or of a participating jurisdiction that is punishable by imprisonment for life or a maximum penalty of 5 or more years imprisonment, or

(b) an indictable offence under a law of the State that is punishable by a maximum penalty of less than 5 years imprisonment, being an offence the elements constituting which (disregarding territorial considerations) are the same as an offence under a law of a participating jurisdiction that is punishable by a maximum of 5 or more years imprisonment.

"serious indictable offender" means a person who has been convicted of a serious indictable offence.
"suspect" means the following:

(a) a person whom a police officer suspects on reasonable grounds has committed an offence,

(b) a person charged with an offence,

(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person.

"time out" means:

(a) the time (if any) that is reasonably required to convey a suspect from the place where the suspect presents himself or herself to an investigating police officer to the nearest premises where facilities for carrying out a forensic procedure in accordance with this Act are available to the investigating police officer,

(b) any time that is reasonably spent waiting for an investigating police officer or appropriately qualified person who is to carry out the forensic procedure to arrive at the place where the procedure is to be carried out,

(c) any time that is reasonably spent waiting for facilities or equipment that are needed to carry out the procedure to become available,

(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Act,

(e) any time during which carrying out the procedure is suspended or delayed to allow such an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out,

(f) any time during which carrying out the procedure is suspended or delayed to allow the suspect to consult with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person at the place where the procedure is to be carried out as provided by this Act,

(g) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention,

(h) any time during which carrying out the procedure is suspended or delayed to allow the suspect to recover from the effects of intoxication due to alcohol or another drug (or both),

(i) any time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or receive refreshments or to give the suspect access to toilet and other facilities,

(j) any time during which carrying out the procedure is suspended or delayed at the request of the suspect,

(k) any time that is reasonably spent waiting for a senior police officer or a Magistrate or other authorised officer to make an order as provided by this Act.

"transgender person" is defined in subsection (6).
"under arrest" is explained in subsection (2).
"untested former offender" is defined in section 75A.
"volunteer" is defined in section 76.
"volunteers (limited purposes) index" is defined in section 90.
"volunteers (unlimited purposes) index" is defined in section 90.

(2) Under arrest For the purposes of this Act, a person is "under arrest" if he or she is a person to whom Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies.

(3) Taking samples For the purposes of this Act, a "sample" taken from a person includes a sample taken from the person that consists of matter from another person’s body.

(4) Informs For the purposes of this Act, a person "informs" another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.

(5) Destroy forensic material For the purposes of this Act, a person who is required to destroy forensic material is required not only to destroy the material but also to ensure that any information that relates any such DNA profile to a person whose DNA it describes is removed from the DNA database system.

(6) Transgender persons In this Act, a reference to a person being "transgender" or a "transgender person" is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

(7) In this Act (other than subsection (6)), a reference:

(a) to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies, and

(b) to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.

(8) Notes included in the text of this Act do not form part of this Act.