CRIMINAL LAW (FORENSIC PROCEDURES) ACT 2007 - SECT 3
CRIMINAL LAW (FORENSIC PROCEDURES) ACT 2007 - SECT 3
(1) In this Act,
unless the contrary intention appears—
"assimilation order" means an order under section 37;
"child" means a person under the age of 18 years;
"closest available next of kin" means—
(a) in
relation to a child, the first in order of priority of the following persons
who is not a protected person and is available at the time:
(i)
a parent of the child;
(ii)
a brother or sister of the child;
(iii)
a guardian of the child; and
(b) in
relation to any other person, the first in order of priority of the following
persons who is not a protected person and is available at the time:
(i)
the spouse or domestic partner of the person;
(ii)
a son or daughter of the person;
(iii)
a parent of the person;
(iv)
a brother or sister of the person;
"corresponding law" means a law of another jurisdiction that provides for
carrying out forensic procedures and is prescribed by regulation for the
purposes of this definition;
"DNA database system"—see section 40;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"forensic material" means material obtained by carrying out a
forensic procedure (but does not include the results of the analysis of any
such material);
"forensic procedure" means 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
Note—
This would include, for example, taking a sample of the person's hair, a
sample of the person's fingernails or toenails or material under the person's
fingernails or toenails, a blood sample, a sample by buccal swab or a sample
of saliva.
(d) the
taking of an impression or cast of a part of a person's body;
Note—
This would include, for example, the taking of a dental impression or the
taking of an impression or cast of a wound.
"guardian" means a person acting or appointed under any Act or law as the
guardian of another;
"gun shot residue procedure" means a forensic procedure consisting of the
taking of samples by swab or other similar means of the hands and fingers of a
person for the purposes of determining the presence of gun shot residue;
"intrusive forensic procedure" means—
(a) a
forensic procedure that involves exposure of, or contact with, the genital or
anal area, the buttocks or the breast region of a female person or a
transgender or intersex person who identifies as female; or
(b) the
taking of a dental impression; or
(c) the
taking of a sample of blood,
but does not include a simple identity procedure;
"investigating police officer" means a police officer in charge of the
investigation of a suspected offence;
"medical practitioner", in relation to a forensic procedure, means a person
who is registered as a medical practitioner in the jurisdiction in which the
procedure is to be carried out and includes, in relation to a
forensic procedure involving the mouth or teeth or an impression left by the
mouth or teeth, a person who is registered as a dentist in the jurisdiction in
which the procedure is to be carried out;
"offenders procedure"—see section 20;
"police officer" includes a law enforcement officer to whom the powers of a
police officer under this Act are extended by regulation;
"protected person" means—
(a) a
child; or
(b) a
person physically or mentally incapable of understanding the nature and
consequences of a forensic procedure;
"quality assurance register" means a register maintained by the Commissioner
of Police for quality assurance purposes that contains DNA profiles derived
from biological material from—
(a)
police officers; and
(b)
persons involved in the conduct of forensic procedures under this Act; and
(c)
persons involved in the analysis of forensic material;
"retention order" means an order under section 36;
"senior police officer" means a police officer of or above the rank of
inspector;
"serious offence" means—
(a) an
indictable offence; or
(b) a
summary offence that is punishable by imprisonment;
"simple forensic procedure" means a forensic procedure consisting of 1 or more
of the following:
(a) a
simple identity procedure;
(b) a
gun shot residue procedure;
(c) a
forensic procedure prescribed by regulation for the purposes of this
definition;
"simple identity procedure" means a forensic procedure consisting of 1 or more
of the following:
(a) the
taking of prints of the hands or fingers of a person;
(b) the
taking of forensic material from a person by buccal swab or finger-prick for
the purpose of obtaining a DNA profile of the person;
"spouse"—a person is the spouse of another if they are legally married;
"suspects/offenders index"—see section 40;
"suspects procedure" means a forensic procedure authorised under Part 2
Division 2 and includes, for the purposes of Part 3, a forensic procedure
authorised under Part 2 Division 4;
"telephone" includes any device for voice telecommunication;
"volunteers (limited purposes) index"—see section 40;
"volunteers and victims procedure"—see section 7;
"volunteers (unlimited purposes) index"—see section 40.
(2) A reference in
this Act to the closest available next of kin of a person means, where there
are 2 or more persons having a description referred to in a subparagraph of
paragraph (a) or (b) of the definition of
"closest available next of kin" in subsection (1), any 1 of those people.
Note—
This means, for example, that where this Act requires the consent of the
closest available next of kin of a person to the carrying out of a forensic
procedure, the procedure may be authorised by the consent of any 1 of the
closest available next of kin (being persons who are equal in the order of
priority in the definition of that term), even if the other closest available
next of kin do not consent.
(3) For the avoidance
of doubt, a procedure consisting of the taking of a sample of
biological material from—
(a) a
police officer; or
(b) a
person involved in the conduct of forensic procedures under this Act; or
(c) a
person involved in the analysis of forensic material,
for the purpose of obtaining a DNA profile of the person to be included in the
quality assurance register does not constitute a forensic procedure for the
purposes of this Act.
(4) For the purposes
of this Act, a person is "suspected of a serious offence if the police officer
by or on whose instructions a forensic procedure is to be carried out on the
person suspects the person, on reasonable grounds, of having committed a
serious offence (whether or not the person has been charged with the offence).