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Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Investigation (Identifying People)
Act 2001.
EXPLANATION
Introduces the Short title of the Act
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different provisions.
EXPLANATION
It is intended that the Act will come into operation by proclamation on a day to be
fixed. To enable the training needs of the Police Service and the necessary
infrastructure to be put in place, different proclamation days may be fixed for
different provisions.
3. Interpretation
(1) In this Act, unless the contrary intention appears --
"adult" means a person who has reached 18 years of age and in respect of
whom there are no reasonable grounds to suspect that he or
she is an incapable person;
"child" means a person who is under 18 years of age and in respect of
whom there are no reasonable grounds to suspect that he or
she is an incapable person;
"corresponding law" has the meaning given by section 87;
"DNA database" has the meaning given by section 76;
"forensic database" has the meaning given by section 61;
"forensic purpose" means --
(a) investigating an offence or a suspected offence or
offences generally;
(b) investigating the death of a person or identifying a
deceased person; or
(c) investigating the whereabouts of or identifying a
missing person;
"identifying feature", in relation to a person, means a permanent or
semi-permanent physical feature of the person that helps to
identify the person;
For example: the face of a person or a birthmark, scar or tattoo on a person.
"identifying information" has, except in Schedule I, the meaning given
by section 61;
"identifying particular" has the meaning given by section 11(1), 17,
23,34, 47,61 or Schedule 1 clause 1, as the case requires;
"identifying procedure" means a procedure in the course of which --
(a) one or more identifying particulars of a person are
obtained from the person; and
(b) if practicable, the person's personal details are obtained;
"impression" includes a cast;
"incapable person" means a person of any age --
(a) who is unable by reason of a mental disability (which
20 term includes intellectual disability, a psychiatric
condition, an acquired brain injury and dementia) to
understand the general nature and effect of, and the
reason for and the consequences of undergoing, an
identifying procedure; or
(b) who is unconscious or otherwise unable to understand a
request made or information given under this Act or to
communicate whether or not he or she consents to an
identifying procedure being done on him or her;
"intimate identifying procedure", in relation to a person, means --
(a) an identifying procedure that is done on the person's
private parts;
(b) the taking of a dental impression of the person; or
(c) the taking of a sample of the person's blood;
"IP warrant (involved protected person)" means a warrant issued under
section 33;
"IP warrant (suspect)" means a warrant issued under section 46;
"JP" means Justice of the Peace;
"non-intimate identifying procedure", in relation to a person, means an
identifying procedure that is done on the person that is not an
intimate identifying procedure, and includes the taking of a
buccal swab from the person;
"offence" means an offence under a written law but does not include a
contempt of court;
"officer" means a police officer or a public officer or both, as the case
requires;
"official details" means --
(a) in respect of a police officer -- the officer's surname
and rank and includes, in relation to an application by
the officer under this Act for a warrant, the officer's
registered number;
(b) in respect of a public officer -- the officer's full name
and official title;
"participating jurisdiction" has the meaning given by section 87;
"personal details", in relation to a person, has the meaning given by
section 16(1);
"photograph" includes a video recording and a digital image;
"police officer" means a person appointed under Part I of the Police Act
1892 to be a member of the Police Force of Western
Australia;
"private parts", in relation to a person, means the person's genital area,
anal area and buttocks and, in the case of--
(a) a female; or
(b) a male undergoing a reassignment procedure within the
meaning of the Gender Reassignment Act 2000, includes
the person's breasts;
"protected Person" means a person who is a child or an incapable
person;
"Public Advocate" has the meaning given by the Guardianship and
Administration Act 1990;
"public officer" means a person, other than a police officer, appointed
under a written law to an office that is prescribed under
section 5(1);
"reasonably suspects" has the meaning given by section 4;
"remote communication" means any way of communicating at a
distance including by telephone, fax, email and radio;
"responsible person", in relation to a child, means --
(a) a parent of the child;
(b) a guardian of the child;
(c) another person who has responsibility for the day-to-day
care of the child; or
(d) if no person mentioned in another paragraph of this
definition is available -- a person, or a person in a class
of persons, prescribed by the regulations;
"responsible person", in relation to an incapable person, means --
(a) the spouse of the incapable person;
(b) a parent of the incapable person;
(c) if the incapable person is under 18 years of age -- a
guardian of the incapable person;
(d) if the incapable person has reached 18 years of age --
the Public Advocate or a guardian of the incapable
person appointed under the Guardianship and
Administration Act 1990;
(e) another person who has responsibility for the day-to-
day care of the incapable person; or
(f) if no person mentioned in another paragraph of this
definition is available -- a person, or a person in a class
of persons, prescribed by the regulations;
"senior officer" means --
(a) a police officer who is, or is acting as, a sergeant or an
officer of a rank more senior than a sergeant;
(b) a public officer who is prescribed by the regulations to
be a senior officer for the purpose of this Act;
"serious offence" means an offence the statutory penalty for which is
strict security life imprisonment, life imprisonment or
imprisonment for 12 months or more;
"statutory penalty", in relation to an offence, means the penalty
specified by a written law for the offence;
"volunteer" has the meaning given by section 17;
"WA Police" means the Police Force of Western Australia provided for
by the Police Act 1892.
(2) For the purposes of this Act a person is charged with an offence when the
officer investigating the offence --
(a) informs the person that he or she will be charged with the
offence, whether or not at that time the officer has made or
sworn a complaint in respect of the offence; or
(b) makes or swears a complaint in respect of the offence,
whichever happens first.
(3) Examples prefaced by "For example:" in this Act do not form part of it
and are provided to assist understanding.
EXPLANATION
These definitions are required to ensure the correct interpretation of the Act.
4. Meaning of "reasonably suspects"
For the purposes of this Act, a person reasonably suspects something at a
relevant time if he or she, acting in good faith, personally has grounds at
the time for suspecting the thing and those grounds (even if they are
subsequently found to be false or non-existent), when judged objectively,
are reasonable.
EXPLANATION
This section defines the term "reasonably suspects" for the purposes of this Act.
5. Public officers may be authorised to exercise powers
(1) For the `purposes of this Act and in particular the definition of "public
officer" in section 3, another Act or the regulations made under this Act
may --
(a) prescribe an office to which people are appointed under a
written law for a public purpose and a function of which is the
investigation of offences; and
(b) in respect of that office, specify those of the powers in this Act
that a holder of that office may exercise, being powers that this
Act provides may be exercised by a public officer.
(2) A public officer may only exercise a power under this Act in relation to an
offence if--
(a) the office held by the public officer has been prescribed under
subsection (1)(a);
(b) the power is one that has been specified under subsection (1)(b)
as one that the officer may exercise; and
(c) the offence is one that the officer, by virtue of being such an
officer, is authorised to investigate or prosecute.
EXPLANATION
This section allows prescribed public officers to utilise the powers conferred in this
Act for purposes provided by the Act. This section will empower officers, other than
police officers, to obtain identifying particulars; for example, Conservation and Land
Management officers and rangers.
6. Officer's duty to identify himself or herself
(1) If under this Act an officer is required to identify himself or herself to a
person the officer must --
(a) if the officer is a police officer --
(i) give the person the officer's official details; and
(ii) if the officer is not in uniform, show the person
evidence that the officer is a police officer;
(b) if the officer is a public officer --
(i) give the person the officer's official details; and
(ii) show the person evidence that the officer is a public
officer.
(2) If an officer cannot comply with subsection (1)(a)(ii) or (1)(b)(ii)
immediately, the officer must comply with it as soon as practicable.
EXPLANATION
This section provides the details and evidence that an officer must supply if required
to under this Act.
7. Non-consent to be assumed in some cases
A person who, having been requested under this Act to undergo an
identifying procedure --
(a) does not reply; or
(b) having consented to it resists the carrying out of it, is taken not
to have consented to undergoing it.
EXPLANATION
Self-explanatory.
8. Procedures for obtaining material from which to obtain DNA profile
(1) Material from which to obtain the DNA profile of a person may be
obtained by doing one or, subject to section 59, more than one of the
following procedures in the following order --
(a) by doing one or both of these non-intimate identifying
procedures --
(i) taking a buccal swab from the person;
(ii) taking a sample of the person's hair (including the
roots), other than pubic hair;
(b) by doing one or both of these intimate identifying procedures
--
(i) taking a sample of the person's blood;
(ii) taking a sample of the person's pubic hair (including the
roots).
(2) Without limiting subsection (1) material from which to obtain the DNA
profile of a deceased person may be obtained by taking any body tissue
from the person.
(3) A person must not use a procedure in subsection (1) to obtain material
from a person unless it is impracticable to use a procedure listed before
that procedure.
EXPLANATION
This section provides the sequence in which samples are taken to obtain DNA profiles
of persons. In the case of non-intimate procedures, firstly by taking a buccal swab
and secondly by taking a hair sample including roots. In the case of intimate
procedures, firstly by taking a blood sample and secondly by taking a sample of their
pubic hair (including roots). In the case of deceased persons this section will enable a
DNA profile to be obtained from whatever tissue is available (to cater for the location
of remains in various stages of decomposition).
9. Samples of material to be provided on request
(1) In this section --
"sample" means a sample of material from which to obtain the DNA
profile of a person that is taken from the person under this
Act.
(2) This section applies to a sample if--
(a) there is enough of the sample to be analysed for the purposes of
this Act and also by or on behalf of the person from whom the
sample was taken; and
(b) the person requests a part of the sample.
(3) The officer responsible for a sample being taken must ensure that--
(a) a part of the sample that is enough for analysis is made
available, without charge, to the person from whom it was
taken;
(b) reasonable care is taken to ensure that the person's part of the
sample is protected and preserved until the person is given it;
and
(c) reasonable assistance is given to the person to ensure that the
sample is protected and preserved until it is analysed.
(4) A person from whom a sample is taken must be informed that, subject to
the matter referred to in subsection (2)(a), a part of the sample will be
made available to him or her if requested.
EXPLANATION
This section provides that when a piece of the sample taken to obtain a persons DNA
profile is requested by that person he or she is to be provided with a piece of the
sample so long as there is sufficient to do so.
10. When a charge is finalised without a finding of guilt
For the purposes of this Act, a charge is finalised without a finding of
guilt if --
(a) the charge is withdrawn;
(b) the charge is dismissed without a finding as to whether the
person charged is guilty or not guilty; or
(c) the person charged is found not guilty of the charge and is not
found guilty of any other offence of which the person could
have been found guilty as a result of the charge and --
(i) no appeal is commenced against the finding; or
(ii) an appeal is commenced against the finding and the
appeal is withdrawn or the finding is confirmed.
EXPLANATION
This section provides a definition of when a charge is finalised without a finding of
guilt. It will be used in relation to the destruction of identifying particulars.
Part 2-- General
11. Application of this Act
(1) In this section --"identifying particular", in relation to a person, means
--
(a) a print of the person's hands (including fingers), feet (including
toes) or ears;
(b) a photograph of the person (including of an identifying feature
of the person);
(c) an impression of an identifying feature of the person (including
a dental impression);
(d) a sample of the person's hair taken for purposes other than
obtaining the person's DNA profile;
(e) the person's DNA profile;
"law enforcement officer" means a police officer or a person appointed
under a written law for a public purpose.
(2) This Act does not apply --
(a) to a person who, not being a law enforcement officer acting in
the course of duty, obtains an identifying particular from, or a
personal detail of, another person; or
(b) to an identifying particular, or a personal detail, obtained by
such a person.
(3) This Act does not apply to or in respect of an identifying particular or a
personal detail, obtained in accordance with another written law.
EXPLANATION
Self-explanatory
12. Information and forensic material from another State, a Territory or
the Commonwealth
Subject to section 91(2), forensic material, or information obtained from
it, that is taken in accordance with the law of another State, a Territory or
the Commonwealth may be retained or used in this State for investigative,
statistical or evidentiary purposes even if its retention or use would, but
for this section, constitute a breach of, or failure to comply with, any
provision of this Act relating to the carrying out of identifying procedures.
EXPLANATION
Other than in accordance with a requirement to destroy forensic material or
information, this section will allow for lawfully obtained forensic material and
profiles from another State or Territory to be lawfully used in this State.
13. Assistance when exercising powers
(1) A person who may exercise a power in this Act may authorise as many
other persons to assist in exercising the power as are reasonably necessary
in the circumstances.
(2) A person so authorised may exercise the power or assist the other person
in exercising the power, as the case requires.
(3) Whether authorised to do so or not, a person may assist another person in
exercising a power in this Act if the person believes, on reasonable
grounds, that the other person --
(a) is lawfully entitled to exercise the power; and
(b) needs assistance for the purpose of doing so.
(4) A person who under subsection (2) or (3) may exercise a power, or assist
in exercising a power, must obey any lawful and reasonable directions of
the person who gave the authorisation or who is being assisted.
EXPLANATION
This section enables authorised persons to authorise other people to assist in the
execution of the provisions of this Act and also allows other people to assist where
there are reasonable grounds to believe that the authorised person needs and is entitled
to such assistance. A person assisting must obey any lawful direction of the
authorised person.
14. Use of force when exercising powers
When exercising a power in this Act, a person may use any force that is
reasonably necessary in the circumstances --
(a) to exercise the power; and
(b) to overcome any resistance to exercising the power that is
offered, or that the person exercising the power reasonably
suspects will be offered, by any person.
EXPLANATION
A person exercising a power under this Act may use reasonable force to exercise the
provisions of the Act and to overcome any resistance.
15. Applying for warrants
(1) In this section --
"judicial officer" means a JP or a magistrate, as the case requires.
(2) This section applies to and in respect of an application to a judicial officer
for a warrant if another section of this Act requires the application to be
made under this section.
(3) The application must be made in writing in the prescribed form.
(4) Subject to subsection (6)(c), the application must be made, and any
information in support of it must be given, on oath.
(5) The application must be made in person before a judicial officer unless --
(a) the warrant is needed urgently; and
(b) the applicant reasonably suspects that a judicial officer is not
known to be available within a reasonable distance of the
applicant,
in which case it may be made to a judicial officer by remote
communication.
(6) If an application for a warrant is made to a judicial officer by remote
communication --
(a) the applicant must prepare a written application and if
practicable send it to the judicial officer;
(b) if it is not practicable to send the written application to the
judicial officer, the applicant may make the application orally;
(c) if it is not practicable to comply with subsection (4), the
applicant may make the application, and give information in
support of the application to the judicial officer, in an unsworn
form; and
(d) the judicial officer must not grant the application unless
satisfied there are grounds under subsection (5) for the
application not to be made in person.
(7) If the application is made orally under subsection (6)(b), the judicial
officer must complete the prescribed form of application.
(8) If information in support of the application is given orally, the judicial
officer must make a record of it.
(9) If--
(a) an applicant makes an unsworn application or gives a judicial
officer unsworn information; and
(b) the judicial officer issues a warrant,
the applicant must send the judicial officer an affidavit verifying the
application or containing the information as soon as is practicable after the
warrant is issued.
(10) If the application is made by remote communication and the judicial
officer issues the warrant, then --
(a) if it is reasonably practicable to send a copy of the warrant to
the applicant by remote communication, the judicial officer
must immediately do so;
(b) if it is not reasonably practicable to so send a copy of the
warrant --
(i) the judicial officer must immediately give the applicant
by remote communication any information that is
required to be set out in the warrant;
(ii) the applicant must complete a form of the warrant with
the information given by the judicial officer;
(iii) the applicant must give the judicial officer a copy of the
completed form as soon as practicable after the warrant
is issued; and
(iv) the judicial officer must attach the copy of the
completed form to the original warrant issued by the
judicial officer and any affidavit received from the
applicant in support of the application and make them
available for collection by the applicant.
(11) If a copy of a warrant is received by remote communication under
subsection (10)(a) or a form of warrant is completed in accordance with
subsection (10)(b)(ii), it has the same effect as the original warrant issued
by the judicial officer.
(12) If an applicant contravenes subsection (9) or (10), any evidence obtained
under the warrant is not admissible in proceedings in a court unless the
court decides otherwise under section 86.
EXPLANATION
This section prescribes the procedural requirements necessary for obtaining a warrant,
both in person and by remote communication, under this Act. A judicial officer for
the purposes of this section is defined as a Justice of the Peace or a Magistrate as the
case requires. The application must be made in writing, on oath and in person unless
there is an urgency attached to the warrant and a judicial officer is not available
within a reasonable distance. Where a warrant is not made in person this section
allows for information to be supplied not on oath, however an affidavit that provides
sworn information must be sent to the judicial officer as soon as practicable after the
warrant has been issued.
Where possible, a copy of the warrant signed by the judicial officer should be sent to
the officer. If it is not possible, the officer must complete a form of the warrant with
the information supplied by the judicial officer. This warrant has the same effect as
though it was a warrant signed by the judicial officer.
Part 3 -- Personal details of people
16. Officer may ask for name, address, etc.
(1) In this section --"personal details", in relation to a person, means --
(a) the person's full name;
(b) the person's date of birth;
(c) the address of where the person is living;
(d) the address of where the person usually lives.
(2) If an officer reasonably suspects that a person whose personal details are
unknown to the officer --
(a) has committed or is committing or is about to commit an
offence; or
(b) may be able to assist in the investigation of an offence or a
suspected offence,
the officer may request the person to give the officer any or all of the
person's personal details.
(3) If an officer reasonably suspects that a personal detail given by a person in
response to a request is false, the officer may request the person to
produce evidence of the correctness of the detail.
(4) A person to whom a request is made under subsection (2) or (3) may
request the officer making the request to identify himself or herself.
(5) An officer who is requested by a person to identify himself or herself must
do so.
(6) A person who, without reasonable excuse, does not comply with a request
made under subsection (2) or (3) commits an offence.
Penalty: Imprisonment for 12 months.
(7) For the purposes of subsection (6), the fact that an officer did not comply
with subsection (5) as soon as practicable is a reasonable excuse.
(8) A person who, in response to a request made under subsection (2), gives
any false personal details commits an offence.
Penalty: Imprisonment for 12 months.
(9) A person who, in response to a request made under subsection (3),
produces any false evidence commits an offence~
Penalty: Imprisonment for 12 months.
EXPLANATION
This section replaces and modernises s. 50 Police Act 1892. Before an officer can
require the personal details of a person they must reasonably suspect the person is a
suspect for an offence (not necessarily a serious offence) or may be able to assist in
the investigation of an offence (not necessarily a serious offence). There is ability for
an officer to request proof of identity. Penalties of 12 months imprisonment are
provided for failing to comply or supplying false details or evidence.
REPLACES S.50 POLICE ACT 1892.
50. Police may demand name and address, and apprehend
Any officer or constable of the Police Force may demand from and require of
any individual his name and address, and may apprehend without warrant any
such person who shall neglect or refuse to give his name and address or either
of them when required so to do, or who furnishes information which that
officer or constable has reasonable cause to believe to be false, and every such
person so neglecting, or refusing, or who shall give a false name or address
when applied to as aforesaid, shall upon conviction forfeit and pay any sum
not exceeding $300, or at the discretion of the convicting Justice be committed
to any gaol or lock-up for any term not exceeding 6 calendar months.
Part 4 -- Identifying particulars of volunteers and others
Division 1 -- Preliminary
17. Definitions
In this Part--
"identifying particular", in relation to a person, means --
(a) a print of the person's hands (including fingers), feet
(including toes) or ears;
(b) a photograph of the person (including of an identifying
feature of the person);
(c) an impression of an identifying feature of the person
(including a dental impression);
(d) a sample of the person's hair taken for purposes other
than obtaining the person's DNA profile;
(e) the person's DNA profile;
"volunteer" means a person who is --
(a) an adult to whom section 19(1)(a) applies;
(b) an incapable person to whom section 19(1)(b) applies;
or
(c) a child to whom section 19(1)(c) applies.
EXPLANATION
This section provides a definition for the term "identifying particular" and "volunteer"
for this Part of the Act.
18. How identifying procedures are to be done
An identifying procedure that under Division 2 or 4 may be done on a
person must be done in accordance with Part 8.
EXPLANATION
This section provides for identifying procedures to be done in accordance with Part 8
of Act.
Division 2-- Volunteers
19. Volunteer for an identifying procedure to be informed
(1) If--
(a) in the case of a person who is an adult, the person volunteers to
a police officer to undergo an identifying procedure for or in
connection with a forensic purpose;
(b) in the case of a protected person who is an incapable person, a
responsible person wants the incapable person to undergo an
identifying procedure for or in connection with a forensic
purpose and informs a police officer accordingly; or
(c) in the case of a protected person who is a child --
(i) the child is willing to undergo an identifying procedure
for or in connection with a forensic purpose; and
(ii) a responsible person wants the child to undergo the
procedure and informs a police officer accordingly,
the officer must inform the volunteer and, if the case requires, the
responsible person, in accordance with subsection (2).
(2) The volunteer and, if the case requires, the responsible person, must be
informed of these matters --
(a) which identifying particulars of the volunteer are sought to be
obtained by means of the identifying procedure;
(b) how the procedure will be carried out;
(c) that subject to his or her decision, the volunteer's identifying
information may be compared with or put in a forensic
database;
(d) that the procedure may provide evidence that could be used in
court against the volunteer;
(e) that he or she may decide whether --
(i) to limit the forensic purposes for which the volunteer's
identifying information may be used; or
(ii) to allow the identifying information to be used for
unlimited forensic purposes;
(f) that he or she may decide whether the identifying information
can be kept by the WA Police --
(i) for a limited period; or
(ii) indefinitely;
(g) that, if the procedure is done, he or she may subsequently
change the decision on the matters in paragraphs (e) and (f) by
notifying the Commissioner of Police;
(h) that the volunteer is not obliged to undergo the procedure;
(i) that he or she may get legal advice before deciding whether or
not to consent to the procedure;
(j) that, if deciding to consent to the procedure, he or she may
withdraw consent at any time before the procedure has been
completed; and
(k) any matter prescribed by the regulations.
(3) The information in subsection (2) may be provided in writing.
EXPLANATION
This section outlines the information that must be supplied to a volunteer when
obtaining identifying particulars. The volunteer (or responsible person as the case
requires) must be informed:
· which identifying particulars are sought
· how the procedure is to be done
· that the information may be compared on a database
· that the information could be used in evidence against the volunteer
· that the volunteer may limit the use of the information
· that the volunteer may decide how long the information is to be kept
· that the volunteer may change their decision on how long they are kept and
what database they may be compared with
· that the volunteer is not obliged to undergo the procedure
· the volunteer may seek legal advice
· that the volunteer may withdraw consent at any time prior to the completion of
the procedure
· any other things that may be prescribed in the regulations
20. Volunteer may consent
(1) If section 19(2) has been complied with --
(a) a volunteer who is an adult --
(i) may consent to the identifying procedure that he or she
was informed about; and
(ii) if he or she consents, must decide the matters in section
19(2)(e) and (f);
(b) a responsible person --
(i) may consent to a protected person undergoing the
identifying procedure that the responsible person was
informed about; and
(ii) if he or she consents, must decide the matters in section
19(2)(e) and (f).
(2) The consent and decisions of a person must be recorded in writing on a
form approved by the Commissioner of Police and signed by the person in
the presence of a police officer.
(3) A copy of the person's signed form must be given to the person.
(4) When the consent of a person has been given and recorded in accordance
with this section, the identifying procedure may be done on the volunteer
unless, before it has been completed --
(a) if the volunteer is an adult, the volunteer withdraws his or her
consent; or
(b) if the volunteer is a protected person --
(i) the volunteer objects to or resists the carrying out of the
procedure; or
(ii) the responsible person withdraws his or her consent to
the volunteer undergoing the procedure.
(5) If an identifying procedure has been done under this Division on an adult,
the adult may subsequently change his or her decision on the matters in
section 19(2)(e) and (f) by notifying the Commissioner of Police.
(6) If an identifying procedure has been done under this Division on a
protected person --
(a) a responsible person; or
(b) if the protected person was a child at the time the identifying
procedure was done who has since then reached 18 years of
age, that person,
may subsequently change the decision on the matters in section 19(2)(e)
and (f) by notifying the Commissioner of Police.
EXPLANATION
This section formalises and defines consent in relation to volunteers. It provides that
once a person has been informed of the matters contained in section 19, either that
person (or a responsible person as the case requires) may consent to undergo an
identifying procedure. A record of the consent and decisions made by the person
must be made and signed in the presence of a police officer, and a copy given to the
person. A person may withdraw her or his consent to the procedure before it is
completed and if the volunteer is a protected person and the protected person resists
the carrying out of the procedure or the responsible person withdraws consent then
consent is deemed to be withdrawn and the procedure is not to be carried out.
Division 3 -- Deceased people
21. Identifying particulars of deceased people
(1) The State Coroner may authorise the taking of identifying particulars from
deceased people, whether or not their deaths are reportable deaths within
the meaning of the Coroners Act 1996, for or in connection with forensic
purposes.
(2) An authorisation given under subsection (1) may apply --
(a) generally to all deceased people or identifying particulars;
(b) to a specific class of deceased people or identifying particulars;
or
(c) conditionally or unconditionally.
(3) A coroner, on his or her own initiative or on the application of a person
with a proper interest, may-
(a) authorise a person to obtain an identifying particular from a
deceased person for or in connection with a forensic purpose;
and
(b) make any orders necessary to enable the identifying particular
to be obtained, including orders relating to the temporary
custody of the body of the deceased person.
(4) An authorisation given under this section must be in writing.
(5) If an authorisation is given under this section the person giving it must
give directions for the purpose of section 63.
EXPLANATION
This section allows the State Coroner to authorise the taking of identifying particulars
from deceased persons for forensic purposes. Forensic purposes include the
investigation of offences, the death of a person or identifying a deceased person, or
the whereabouts or identity of a missing person.
An authorisation under this section must be in writing and specify the matters
contained in section 63 as to what databases the identifying particular may be
matched against.
Division 4 -- Police officers
22. Identifying particulars of police officers
(1) The Commissioner of Police may require a person who at the time is
appointed under Part I, III or IIIA of the Police Act 1892 to undergo an
identifying procedure for or in connection with the forensic purposes
prescribed by the regulations for the purposes of this subsection.
(2) The powers in this section may be exercised as often as the Commissioner
of Police thinks is necessary.
EXPLANATION
The Commissioner of Police may authorise the taking of identifying particulars of
police officers and cadets, Aboriginal Aides and special constables for or in
connection with forensic purposes as prescribed by the regulations.
Part 5 -- Identifying particulars of victims and witnesses
23. Definitions
In this Part --
"identifying particular", in relation to a person, means --
(a) a print of the person's hands (including fingers), feet (including
toes) or ears;
(b) a photograph of the person (including of an identifying feature
of the person);
(c) an impression of an identifying feature of the person (including
a dental impression);
(d) a sample of the person's hair taken for purposes other than
obtaining the person's DNA profile;
(e) the person's DNA profile;
"involved person" means a person who is not a suspect for an offence but
who is reasonably suspected to have been the victim of or to
have witnessed the commission of the offence.
EXPLANATION
This section provides a definition for the term `identifying particular' and `involved
person' for this Part of the Act.
24. How identifying procedures are to be done
An identifying procedure that under this Part may be done on an involved
person must be done in accordance with Part 8.
EXPLANATION
This section provides for identifying procedures to be done in accordance with Part 8
of Act.
25. Request to adult to undergo identifying procedure
(1) In this section --
"involved person" means an involved person who is an adult.
(2) If an officer reasonably suspects --
(a) that an offence has been committed; and
(b) that an identifying particular of an involved person, obtainable
by means of a non-intimate identifying procedure, will afford
evidence of the commission of the offence or of who
committed the offence,
the officer may request the person to consent to undergoing the non-
intimate identifying procedure to obtain the identifying particular.
(3) An officer who requests an involved person to consent to an identifying
procedure must at the time inform the person of these matters -
(a) the offence that is suspected of having been committed and to
which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that, subject to the person's decision, information derived from
the procedure may be compared with or put in a forensic
database;
(e) the circumstances in which destruction may be requested under
section 69;
(f) that if the person should become a suspect for the offence,
evidence provided by the procedure could be used in a court
against the person;
(g) that the person may decide whether --
(i) to limit the forensic purposes for which information
derived from the procedure may be used; or
(ii) to allow the information to be used for unlimited
forensic purposes;
(h) that, if the procedure is done, the person may subsequently
change the decision on the matters in paragraph (g) by
notifying the Commissioner of Police;
(i) that the person may consent or refuse to consent to the
procedure; and
(j) that, if the person consents to the procedure, he or she may
withdraw consent at any time before the procedure has been
completed.
EXPLANATION
An officer may request an adult who is a victim or a witness to an offence (an
involved person) to undergo an identifying procedure if the officer reasonably
suspects an offence has been committed and the identifying particular will afford
evidence of the commission of the offence or of who committed the offence. This
section only permits a non-intimate identifying procedure to be requested and
obtained.
The section further outlines the information that must be supplied to an involved
person when obtaining identifying particulars. The person must be informed:
· of the offence to which the procedure relates
· the purpose of and how the procedure will be done
· that they may consent or refuse to consent, may limit the use of the
information, and may change that decision by notifying the Commissioner of
Police
· that destruction may be requested under section 69
· that should the person become a suspect, the evidence may be used in court
· that the involved person may withdraw consent at any time prior to the
completion of the procedure.
26. Request for protected person to undergo identifying procedure
(1) In this section --
"involved person" means an involved person who is a protected person.
(2) If an officer reasonably suspects --
(a) that an offence has been committed; and
(b) that an identifying particular of an involved person, obtainable
by means of a non-intimate identifying procedure, will afford
evidence of the commission of the offence or of who
committed the offence,
the officer may request a responsible person to consent to the non-intimate
identifying procedure being done on the involved person to obtain the
identifying particular.
(3) An officer who requests a responsible person to consent to a procedure
being done on an involved person must at the time inform the responsible
person of these matters --
(a) the offence that is suspected of having been committed and to
which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that, subject to the responsible person's decision, information
derived from the procedure may be compared with or put in a
forensic database;
(e) the circumstances in which destruction may be requested under
section 69;
(f) that if the involved person should become a suspect for the
offence, evidence provided by the procedure could be used in a
court against the involved person;
(g) that the responsible person may decide whether --
(i) to limit the forensic purposes for which information
derived from the procedure may be used; or
(ii) to allow the information to be used for unlimited
forensic purposes;
(h) that, if the procedure is done, the responsible person may
subsequently change the decision on the matters in paragraph
(g) by notifying the Commissioner of Police;
(i) that the responsible person may consent or refuse to consent to
the procedure being done on the involved person;
(j) that, if the responsible person consents to the procedure, he or
she may withdraw consent at any time before the procedure has
been completed; and
(k) that if the responsible person does not consent or withdraws
consent --
(i) an application may be made for authority to do the
procedure against the responsible person's will; and
(ii) if authority is given the procedure may be done against
the responsible person's will.
EXPLANATION
An officer may request a responsible person to allow a protected person who is a
victim or a witness to an offence to undergo an identifying procedure if the officer
reasonably suspects an offence has been committed and the identifying particular will
afford evidence of the commission of the offence or of who committed the offence.
This section only permits a non-intimate identifying procedure to be requested and
obtained.
A responsible person who is requested to permit a protected person to undergo a
procedure must be informed:
· the offence to which the procedure relates
· the purpose of and how the procedure will be done
· that the information may be compared with or put in a database
· the circumstances in which destruction may be requested
· that should the person become a suspect, the evidence may be used in court
· that the responsible person may consent or refuse to consent
· that the responsible person may allow limited or unlimited use of the
information
· that they may withdraw consent
· if the responsible person does not consent or withdraws consent, an
application may be made for the authority to do the procedure, and if granted,
the procedure may be done against the responsible person's will
27. Request and giving of information to be recorded
(1) An officer who makes a request under section 25 or 26 must ensure that a
record is made of the request, of the information given under the section
and of the involved person's or responsible person's responses (if any).
(2) The record must be an audiovisual record or in writing.
EXPLANATION
Where an involved person is requested to undergo an identifying procedure, this
section requires the request to be recorded audio visually (i.e. videotaped) or in
writing.
28. When identifying procedure may be done
(1) If--
(a) under section 25 a request is made to an involved person or
under section 26 to a responsible person;
(b) the person is informed in accordance with section 25 or 26, as
the case requires; and
(c) as the case requires, either --
(i) the involved person who is an adult consents to the
procedure and decides the matters in section 25(3)(g); or
(ii) the responsible person consents to the procedure being
done on the involved person who is a protected person
and decides the matters in section 26(3)(g),
then the non-intimate identifying procedure may be done on the involved
person.
(2) If an involved person who is an adult, having been --
(a) requested under section 25 to consent to an identifying
procedure; and
(b) informed under that section,
does not consent or withdraws consent to the procedure being done, the
procedure cannot be done or continue to be done on the involved person.
(3) If a responsible person, having been --
(a) requested under section 26 to consent to an identifying
procedure being done on an involved person who is a protected
person; and
(b) informed under that section,
does not consent or withdraws consent to the procedure being done, the
procedure may only be done on the involved person if a magistrate issues
an IP warrant (involved protected person) that authorises it.
EXPLANATION
Where a request has been made in accordance with the previous sections, this section
provides an identifying procedure may be performed on an involved person where
consent has been obtained. Where consent is not obtained, this section provides for
an application to be made to a Magistrate for an IP warrant but only in relation to an
involved protected person.
29. Consent may be withdrawn
(1) This section applies to and in respect of an involved person if an
identifying procedure may be done on the involved person under section
28(1).
(2) An adult involved person who has consented to undergoing the identifying
procedure may withdraw his or her consent at any time before the
procedure has been completed.
(3) A responsible person who has consented to an identifying procedure being
done on an involved person who is a protected person may withdraw his
or her consent at any time before the procedure on the involved person has
been completed.
(4) If consent is withdrawn under this section, section 28(2) or (3) applies, as
the case requires.
EXPLANATION
This section provides the ability for a person who has consented under section 28 (1)
to withdraw consent to the identifying procedure before the procedure has been
completed. If consent by a responsible person for a protected person is withdrawn
under section 28(3) an application may be made to a Magistrate to issue an IP warrant
(involved protected person).
30. Decision may be changed
(1) If an identifying procedure has been done under section 28(1) on an
involved person who is an adult, the involved person may subsequently
change his or her decision on the matters in section 25(3)(g) by notifying
the Commissioner of Police.
(2) If an identifying procedure has been done under section 28(1) on an
involved person who is a protected person --
(a) a responsible person; or
(b) if the protected person was a child at the time the identifying
procedure was done who has since then reached 18 years of
age, that person,
may subsequently change the decision on the matters in section 26(3)(g)
by notifying the Commissioner of Police.
EXPLANATION
This section provides the ability for a person who has consented under section 28 (1)
to change their minds about whether the information can be kept for a limited or
unlimited purpose. A child who's identifying particulars were taken with the
approval of a responsible person may also change this decision when they reach
adulthood.
31. Officer may apply for IP warrant (involved protected person)
An officer may apply for an IP warrant (involved protected person) to do
an identifying procedure on an involved person who is a protected person
--
(a) if the officer reasonably suspects that, if a request were made
under section 26, the investigation of the offence concerned
would be prejudiced; or
(b) if under section 28 an IP warrant (involved protected person) is
needed in order to do it.
EXPLANATION
This section outlines the circumstances where an officer may apply for an IP warrant
(involved protected person). Such circumstances include where there is a reasonable
suspicion the investigation will be prejudiced, consent has been declined or
withdrawn and section 29 applies.
32. Application for IP warrant (involved protected person)
(1) Only an officer may apply for an IP warrant (involved protected person).
(2) An application for an IP warrant (involved protected person) must be
made to a magistrate in accordance with section 15.
(3) An application for an IP warrant (involved protected person) must --
(a) name the person in respect of whom the warrant is wanted;
(b) state the offence in respect of which the involved person is
suspected to have been an involved person;
(c) state the grounds on which the applicant suspects that the
person is an involved person in respect of the offence;
(d) specify the identifying particular that is sought and the non-
intimate identifying procedure by means of which it is to be
obtained;
(e) state the grounds on which the applicant suspects that the
identifying particular will afford evidence of whether or not
another person committed the offence;
(f) if the application is made under section 31(a) -- state the
grounds on which the applicant suspects that the investigation
of the offence concerned would be prejudiced if a request were
made under section 26; and
(g) comply with the relevant provisions of subsection (4).
(4) An application for an IP warrant (involved protected person) must also
state the applicant's grounds for suspecting --
(a) if the application is made under section 31(b) -- either that it is
not reasonably practicable to obtain a responsible person's
consent to the involved person undergoing the procedure or --
(i) that a responsible person has refused to or will not
consent, or has withdrawn consent, to the involved
person undergoing the procedure;
(ii) that the responsible person is a suspect in relation to a
serious offence; and
(iii) that the procedure will afford evidence of whether or not
the responsible person committed the offence; and
(b) in the case of a child, that the child --
(i) is willing to undergo the non-intimate identifying
procedure; and
(ii) is sufficiently mature and capable of understanding the
general nature and effect of, and the reason for and the
consequences of, undergoing the procedure.
EXPLANATION
This section prescribes the procedural requirements necessary for obtaining an IP
warrant (involved protected person), both in person and by remote communication.
An officer must apply to a Magistrate for a warrant. The application must include:
· the name of the involved person
· the offence
· the grounds on which the person is suspected of being an involved person
· the identifying particular and the non-intimate procedure necessary to obtain it
· the grounds on which the applicant believes the identifying particular will
provide evidence that another person did or did not commit the offence
· if the application is made on the grounds that to request consent of the
involved person would prejudice the investigation, the reasons that the
investigation would be prejudiced
· in the case of a child, that the child is willing to undergo the identifying
procedure
33. Issue and effect of IP warrant (involved protected person)
(1) On an application made under section 32 a magistrate may issue an IP
warrant (involved protected person) if the magistrate is satisfied --
(a) that, in respect of the matters in section 32(3) and (4) on which
the applicant is required to have a suspicion, there are
reasonable grounds for the applicant to have that suspicion; and
(b) that the interests of justice justify obtaining the identifying
particular specified in the application.
(2) In determining whether to make and, if so, the terms of an IP warrant
(involved protected person), the magistrate is to take into account --
(a) the seriousness of the offence in respect of which the involved
person is suspected to have been a victim or witness;
(b) in the case of a child -- the maturity of the child and his or her
capacity to make decisions and whether he or she is willing to
undergo the procedure, to the extent that those matters can be
determined by the magistrate; and
(c) the best interests of the protected person.
(3) For the purposes of this section, a magistrate may inform himself or
herself in any way he or she thinks fit.
(4) In the case of an application for an IP warrant (involved protected person)
in respect of an incapable person, the magistrate may, on his or her own
initiative --
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public Advocate; or
(c) if the warrant is issued, give a copy of it to the Public
Advocate,
and may use remote communication to do so.
(5) An IP warrant (involved protected person) must contain this information
--.
(a) the official details of the applicant;
(b) the name of the involved person to whom it relates;
(c) the offence to which it relates;
(d) the identifying particular to be obtained and the non-intimate
identifying procedure by means of which it is to be obtained;
(e) either--
(i) the limited forensic purposes for or in connection with
which the involved person's identifying information
may be used; or
(ii) a statement that the information may be used for or in
connection with unlimited forensic purposes;
(f) whether that identifying information may be put in a forensic
database;
(g) the period, not exceeding 14 days, during which it may be
executed;
(h) the name of the magistrate who issued it; and
(i) the date and time when it was issued.
(6) An IP warrant (involved protected person) authorises --
(a) an officer authorised by subsection (7) --
(i) to arrest the involved person to whom it relates; and
(ii) to detain him or her for a reasonable period in order to
do the procedure specified in it; and
(b) if applicable, the doing of the procedure on the involved person
against the responsible person's will.
(7) The powers in subsection (6)(a) may be exercised by --
(a) if a police officer applied for the warrant, any police officer; or
(b) if a public officer applied for the warrant, any public officer
who has the same functions as the applicant, or any police
officer.
EXPLANATION
This section prescribes the issue and effect of an IP warrant (involved protected
person) and the information a Magistrate is to take into account before issuing the
warrant. The Magistrate must be satisfied that the reasonable grounds of suspicion
are reasonable and that the issue of the warrant is in the interests of justice.
If the IP warrant (involved protected person) is for an incapable person the Act
provides for the Magistrate to seek information or submissions from the Public
Advocate and supply copies of the application and the warrant to the Public Advocate.
An IP Warrant (involved protected person) must contain the following:
· the official details of the applicant
· the name of the involved person and the offence to which it relates
· the identifying particular to be obtained and the non-intimate procedure used
to obtain it
· the period, not more than 14 days, in which the warrant may be executed
· the name of the Magistrate and date and time of the issued warrant
· the limited forensic purpose for which the information may be used if it is to
be limited
· the period in which it may be executed (no more than 14 days)
· the Magistrates name and date and time of issue
The warrant provides an ability to arrest and detain a person for the purpose of doing
the identifying procedure authorised under the warrant.
Part 6 -- Identifying particulars of uncharged suspects
34. Definitions
In this Part --
"identifying particular", in relation to a person, means --
(a) a print of the person's hands (including fingers), feet (including
toes) or ears;
(b) a photograph of the person (including of an identifying feature
of the person);
(c) an impression of an identifying feature of the person (including
a dental impression);
(d) a sample of the person's hair taken for purposes other than
obtaining the person's DNA profile;
(e) the person's DNA profile;
"suspect" means a person who is reasonably suspected of having
committed a serious offence but who has not been charged
with the offence, and, for the purposes of this definition, it
does not matter whether or not the person is in lawful custody
for the offence.
EXPLANATION
This section provides a definition for the terms "identifying particular", and "suspect"
for this Part of the Act.
35. Purpose of identifying procedure
This Part does not authorise an identifying procedure to be done on a
suspect except for the purpose of obtaining an identifying particular of the
suspect that is reasonably suspected will afford evidence of whether or not
the suspect committed a serious offence that he or she is reasonably
suspected of having committed.
EXPLANATION
An identifying particular may only be done on a suspect who has not been charged,
where it is reasonably suspected it will afford evidence of whether or not the suspect
committed a serious offence.
36. How identifying procedures are to be done
An identifying procedure that under this Part may be done on a suspect
must be done in accordance with Part 8.
EXPLANATION
Self-explanatory.
37. Request to adult to undergo identifying procedure
(1) In this section --"suspect" means a suspect who is an adult.
(2) If an officer reasonably suspects --
(a) that a serious offence has been committed; and
(b) that an identifying particular of a suspect for the offence will
afford evidence of whether or not the suspect committed the
offence,
the officer may request the suspect to consent to an identifying procedure
to obtain the identifying particular.
(3) An officer who requests a suspect to consent to an identifying procedure
being done on the suspect must at the time inform the suspect of these
matters --
(a) the serious offence that the suspect is suspected of having
committed and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that information derived from the procedure may be compared
with or put in a forensic database;
(e) the circumstances in which destruction may be requested under
section 69;
(f) that the procedure may provide evidence that could be used in a
court against the suspect;
(g) that the suspect may consent or refuse to consent to the
procedure;
(h) that, if the suspect consents to the procedure, he or she may
withdraw consent at any time before the procedure has been
completed; and
(i) that if the suspect does not consent or withdraws consent --
(i) an application may be made for authority to do the
procedure against the suspect's will; and
(ii) if authority is given the procedure may be done against
the suspect's will.
EXPLANATION
An officer may request an adult who is a suspect for an offence, but has not been
charged in relation to the offence, to consent to an identifying procedure to obtain an
identifying particular.
Information that the suspect must be informed is also prescribed and includes:
· the serious offence the suspect is suspected of committing
· the purpose of the procedure and how it will be done
· that information may be compared against a database
· the circumstance in which destruction may be requested
· evidence gained from the procedure may be used against the person in court
· that the suspect may consent or refuse the procedure and may withdraw
consent
· if the suspect does not consent or withdraws consent, an application may be
made to do the procedure against the suspect's will, and if authority is given, it
will be done against the suspect's will
38. Request for protected person to undergo identifying procedure
(1) In this section --
"suspect" means a suspect who is a protected person.
(2) If an officer reasonably suspects --
(a) that an offence has been committed; and
(b) that an identifying particular of a suspect for the offence will
afford evidence of whether or not the suspect committed the
offence,
the officer may request a responsible person to consent to an identifying
procedure being done on the suspect to obtain the identifying particular.
(3) An officer who requests a responsible person to consent to an identifying
procedure being done on a suspect must at the time inform the responsible
person of these matters --
(a) the offence that the suspect is suspected of having committed
and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that information derived from the procedure may be compared
with or put in a forensic database;
(e) the circumstances in which destruction may be requested under
section 69;
(f) that the procedure may provide evidence that could be used in a
court against the suspect;
(g) that the responsible person may consent or refuse to consent to
the procedure being done on the suspect;
(h) that, if the responsible person consents to the procedure, he or
she may withdraw consent at any time before the procedure has
been completed; and
(i) that if the responsible person does not consent or withdraws
consent --
(i) an application may be made for authority to do the
procedure against the responsible person's will; and
(ii) if authority is given the procedure may be done against
the person's will.
(4) If the suspect is a child, the making of a request, and the giving of
information, under this section must be done in the presence of the
suspect.
EXPLANATION
An officer may request a responsible person in relation to a protected person who is a
suspect for an offence, but has not been charged in relation to the offence, to consent
to an identifying procedure to obtain an identifying particular.
Information that the responsible person must be informed is also prescribed and
includes:
· the serious offence the suspect is suspected of committing
· the purpose of the procedure and how it will be done
· that information may be compared against a database
· the circumstances in which destruction may be requested
· that any evidence gained from the procedure may be used against the protected
person in court
· that the responsible person may consent or refuse the procedure and may
withdraw consent and
· if the responsible person does not consent, an application may be made to do
the procedure against the person's will, and if authority is given, it will be
done against the person's will
The request and giving of information under this section must be done in the presence
of the suspect.
39. Request and giving of information to be recorded
(1) An officer who makes a request under section 37 or 38 must ensure that a
record is made of the request, of the information given under the section
and of the suspect's or responsible person's responses (if any).
(2) The record must be an audiovisual record or in writing.
EXPLANATION
Where a suspect or responsible person is requested to undergo or authorise an
identifying procedure, this section requires the request to be recorded audio visually
(i.e. videotaped) or in writing.
40. When identifying procedure may be done
(1) If--
(a) under section 37 a request is made to a suspect or under section
38 to a responsible person;
(b) the suspect or responsible person is informed in accordance
with section 37 or 38, as the case requires; and
(c) as the case requires, either --
(i) the suspect, if an adult, consents to the identifying
procedure; or
(ii) the responsible person consents to the identifying
procedure being done on the suspect who is a protected
person,
then the identifying procedure may be done on the suspect.
(2) If a suspect who is an adult, having been --
(a) requested under section 37 to consent to an identifying
procedure; and
(b) informed under that section,
does not consent or withdraws consent to the procedure, the procedure
may only be done on the suspect if --
(c) in the case of a non-intimate identifying procedure -- a senior
officer approves it under section 44; or
(d) in the case of an intimate identifying procedure -- a JP issues
an IP warrant (suspect) that authorises it.
(3) If a responsible person, having been --
(a) requested under section 38 to consent to an identifying
procedure being done on a suspect who is a protected person;
and
(b) informed under that section,
does not consent or withdraws consent to the procedure, the procedure
may only be done on the suspect if a magistrate issues an IP warrant
(suspect) that authorises it.
EXPLANATION
This section provides the ability for an officer, having requested a suspect or
responsible person to undergo an identifying procedure, to do the procedure if the
suspect or responsible person does consent.
If the suspect does not consent, in the case of an adult, a senior officer may give
approval for a non-intimate procedure. A senior officer is defined as being a person
of the rank of Sergeant or above or acting in that rank, or in the case of a public
officer, a person prescribed by the Regulations. Where an intimate procedure is
sought for an adult, a Justice of the Peace may issue an IP warrant (suspect).
In the case of a protected person, where consent is not obtained from a responsible
person, approval to do either procedure must be subject to an IP warrant (suspect)
issued by a Magistrate.
41. Consent may be withdrawn
(1) This section applies to and in respect of a suspect if an identifying
procedure may be done on the suspect under section 40(1).
(2) An adult suspect who has consented to undergoing the identifying
procedure may withdraw his or her consent at any time before the
procedure has been completed.
(3) A responsible person who has consented to an identifying procedure being
done on a suspect who is a protected person may withdraw his or her
consent at any time before the procedure on the suspect has been
completed.
(4) If consent is withdrawn under this section, section 40(2) or (3) applies, as
the case requires.
EXPLANATION
A suspect or responsible person may withdraw consent to the identifying procedure
before the procedure has been completed. There is ability to make application for
approval or warrant where this occurs in accordance with subsections 40(2) and (3).
42. Officer may apply for approval of IP warrant (suspect)
(1) An officer may apply for the approval of a senior officer to do a non-
intimate identifying procedure on a suspect who is an adult if under
section 40(2) the approval of a senior officer is needed in order to do it.
(2) An officer may apply for an IP warrant (suspect) to do an identifying
procedure on a suspect --
(a) if the officer reasonably suspects that, if a request were made
under section 37 or 38, the investigation of the offence
concerned would be prejudiced; or
(b) if under section 40(2) or (3) an IP warrant (suspect) is needed
in order to do it.
EXPLANATION
An officer may seek approval from a senior officer to do a non-intimate identifying
procedure on an adult suspect who has not been charged where that suspect has
refused consent.
An officer may apply for an IP warrant (suspect) where:
· there is a reasonable suspicion the investigation will be frustrated by
requesting the procedure (for instance where the responsible person is also a
suspect or is likely to destroy other evidence to protect the suspect)
· consent has been refused or withdrawn and a warrant is necessary to do the
procedure
43. Application for approval to do non-intimate identifying procedure on
adult
(1) In this section --
"suspect" means a suspect who is an adult.
(2) An application for an approval under this section to do a non-intimate
identifying procedure on a suspect must be made to another officer who is
a senior officer and not involved in the investigation of the offence to
which the proposed non-intimate identifying procedure relates.
(3) The application may be made by remote communication.
(4) The application must -
(a) if practicable be in writing;
(b) name the suspect to whom it relates;
(c) state the offence that the suspect is suspected of having
committed;
(d) specify the identifying particular that is sought and the non-
intimate identifying procedure by means of which it is to be
obtained;
(e) state the grounds on which the applicant suspects --
(i) that the suspect has committed the offence; and
(ii) that the identifying particular sought will afford
evidence of whether or not the suspect committed the
offence.
EXPLANATION
This section prescribes the necessary requirements for approval by a senior officer to
carry out a non-intimate identifying procedure on an adult suspect. The senior officer
must not be involved in the investigation and the application may be made by remote
communication.
The application must:
· if practicable, be in writing
· name the suspect and the offence suspected
· specify the identifying particular sought, and the non-intimate procedure to be
used to obtain it
· state the grounds the applicant suspects the suspect committed the offence and
that the identifying particular will prove or disprove the offence
44. Senior officer may approve non-intimate identifying procedure to be
done on adult
(1) On an application made under section 43 a senior officer may approve a
non-intimate identifying procedure being done on a suspect against the
suspect's will.
(2) A senior officer must not give approval unless he or she is satisfied --
(a) that the suspect is an adult;
(b) that the suspect has been informed in accordance with section
37;
(c) that, in respect of the matters in section 43(4) about which the
applicant is required to have a suspicion, there are reasonable
grounds for the applicant to have that suspicion; and
(d) that the interests of justice justify obtaining the identifying
particular specified in the application.
(3) As soon as practicable after giving approval a senior officer must make a
record of--
(a) the date and time when it was given; and
(b) the reasons for giving it.
(4) An approval may be given by remote communication.
(5) An approval given under this section authorises --
(a) an officer--
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in order to
do the non-intimate identifying procedure approved; and
(b) the doing of the non-intimate identifying procedure on the
suspect against his or her will.
EXPLANATION
This section authorises a senior officer to approve a non-intimate identifying
procedure on an adult suspect. Before giving approval a senior officer must be
satisfied that:
· the suspect is an adult
· the suspect has been informed in accordance with section 37 of the following
o the serious offence the suspect is suspected of committing
o the purpose of the procedure and how it will be done
o that information may be compared against a database
o the circumstance in which destruction may be requested
o that evidence gained from the procedure may be used against the
person in court
o that they may consent or refuse the procedure and may withdraw
consent
o that if they do not consent or they withdraw consent, an application
may be made to do the procedure against their will, and if authority is
given, it will be done against their will
· the applicant has the required reasonable suspicion in accordance with section
43(4)
· to obtain the identifying particular is in the interests of justice
A senior officer must make a record of the time and date of approval and the reasons
for giving approval as soon as practicable after giving approval.
This approval may be given by remote communication and permits the officer to:
· arrest the suspect
· detain him or her for a reasonable period in order to do the procedure
· do the procedure against the will of the suspect
45. Application for IP warrant (suspect)
(1) Only an officer may apply for an IP warrant (suspect).
(2) An application for an IP warrant (suspect) must be made in accordance
with section 15 --
(a) to a JP if the application is in respect of an adult; or
(b) to a magistrate if the application is in respect of a protected
person.
(3) An application for an IP warrant (suspect) must --
(a) name the suspect in respect of whom the warrant is wanted;
(b) state the offence that the suspect is suspected of having
committed;
(c) specify the identifying particular that is sought and the
identifying procedure by means of which it is to be obtained;
(d) state the grounds on which the applicant suspects --
(i) that the suspect has committed the offence; and
(ii) that the identifying particular sought will afford
evidence of whether or not the suspect committed the
serious offence.
EXPLANATION
Only police or prescribed public officers may apply to a Justice of the Peace to
approve a request to carry out an identifying procedure on an adult suspect (in the
case of an intimate identifying procedure). In the case of a protected person (child or
incapable person), the application must be to a Magistrate.
An application must include:
· the name of the suspect
· the offence the suspected of having been committed
· the identifying particular sought and the procedure to be used
· the grounds the applicant suspects the suspect committed the offence and that
the identifying particular will prove or disprove the offence
46. Issue and effect of IP warrant (suspect)
(1) On an application made under section 45 a JP or magistrate, as the case
requires, may issue an IP warrant (suspect) if he or she is satisfied --
(a) that, in respect of the matters in section 45(3) on which the
applicant is required to have a suspicion, there are reasonable
grounds for the applicant to have that suspicion; and
(b) that the interests of justice justify obtaining the identifying
particular specified in the application.
(2) In the case of an application for an IP warrant (suspect) in respect of an
incapable person, the magistrate may, on his or her own initiative --
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public Advocate; or
(c) if the warrant is issued, give a copy of it to the Public
Advocate,
and may use remote communication to do so.
(3) An IP warrant (suspect) must contain this information --
(a) the official details of the applicant;
(b) the name of the suspect to whom it relates;
(c) the offence to which it relates;
(d) the identifying particular to be obtained and the identifying
procedure by means of which it is to be obtained;
(e) the period, not exceeding 14 days, during which it may be
executed;
(f) the name of the JP or magistrate who issued it; and
(g) the date and time when it was issued.
(4) An IP warrant (suspect) must be in the prescribed form.
(5) An IP warrant (suspect) authorises --
(a) an officer authorised by subsection (6) --
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in order to
do the identifying procedure specified in it; and
(b) the doing of the identifying procedure on the suspect against his
or her will.
(6) The powers in subsection (5)(a) may be exercised by --
(a) if a police officer applied for the warrant, any police officer; or
(b) if a public officer applied for the warrant, any public officer
who has the same functions as the applicant, or any police
officer.
EXPLANATION
This section provides the ability for a Justice of the Peace or Magistrate to issue an IP
warrant (suspect) where they are satisfied there are reasonable grounds for the
applicant to have the suspicion and it is in the interests of justice to obtain the
identifying particular. Where the application involves an incapable person, the
Magistrate may liaise with the Public Advocate, and may use remote communication
to do so.
An IP warrant (suspect) must contain the following:
· the official details of the applicant
· the name of the suspect and the offence to which it relates
· the identifying particular to be obtained and the procedure to be used
· the period, not more than 14 days, in which the warrant may be executed
· the name of the JP or Magistrate and date and time of the issued warrant
There is an ability to arrest and detain a person for the purpose of doing the
identifying procedure authorised under the warrant.
Part 7 -- Identifying particulars of charged suspects
47. Definitions
In this Part --
"charged suspect" means a person who has been charged with, but not
dealt with by a court for, a serious offence and, for the
purposes of this definition, it does not matter whether or not
the person is in lawful custody for the offence;
"identifying particular", in relation to a person, means --
(a) a print of the person's hands (including fingers), feet (including
toes) or ears;
(b) a photograph of the person (including of an identifying feature
of the person);
(c) the person's DNA profile.
EXPLANATION
This section provides definitions for the terms "charged suspect" and "identifying
particular" to be used in this Part.
48. How identifying procedures are to be done
An identifying procedure that under this Part may be done on a suspect
must be done in accordance with Part 8.
EXPLANATION
This section provides for identifying procedures to be done in accordance with Part 8
of Act.
49. Identifying particulars may be taken
(1) If an officer reasonably suspects that any or all of a charged suspect's
identifying particulars --
(a) are not or may not be held by the WA Police; or
(b) are or may be needed to verify the person's identity with
identification particulars already held by the WA Police,
the officer may request the suspect to consent to an identifying procedure
being done on the suspect for the purpose of obtaining one or more of the
suspect's identifying particulars.
(2) An officer who requests a charged suspect to consent to an identifying
procedure being done on the suspect must at the time inform the suspect
of these matters --
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared
with or put in a forensic database;
(d) the circumstances in which destruction may be requested under
section 69;
(e) that the procedure may provide evidence that could be used in a
court against the suspect;
(f) that if the suspect does not consent or withdraws consent to the
procedure --
(i) the suspect may be ordered to undergo the procedure;
and
(ii) the procedure may be done on the suspect against the
suspect's will if the suspect does not obey the order.
EXPLANATION
This section provides the ability for an officer to take identifying particulars from all
persons charged with a serious offence, whether or not they are in custody.
The officer must request the charged suspect to consent to the identifying particular
and must inform the charged suspect of the following:
· the purpose of the procedure and how it will be done
· that the information may be put on and compared against a database
· the circumstance in which destruction may be requested
· that evidence gained from the procedure may be used against the person in
court
· that if they do not consent or they withdraw consent, they may be ordered to
undergo the procedure and if they do not obey the order the procedure will be
done against their will
50. Request and giving of information to be recorded
(1) A police officer who makes a request under section 49 must ensure that a
record is made of the request, of the information given under the section
and the charged suspect's responses (if any).
(2) The record must be an audiovisual record or in writing.
EXPLANATION
This section requires an officer to record the request made under section 49 to take
identifying particulars from a charged suspect, and any responses to be recorded audio
visually or in writing.
51. When identifying procedure may be done
(1) If--
(a) under section 49 a request is made to a charged suspect;
(b) the suspect is informed in accordance with that section; and
(c) the suspect consents to the identifying procedure being done,
then the identifying procedure may be done on the suspect.
(2) If--
(a) under section 49 a request is made to a charged suspect;
(b) the suspect is informed under that section; and
(c) the suspect does not consent or withdraws consent to the
identifying procedure,
the officer may order the suspect to undergo the procedure.
(3) If a charged suspect does not obey an order made under subsection (2), an
officer may --`
(a) if the suspect is not in custody -- without a warrant arrest the
suspect and detain him or her for a reasonable time in order to
do the identifying procedure; and
(b) do the identifying procedure on the suspect against the
suspect's will.
EXPLANATION
This section allows for the procedure to be done when the suspect consents to a
request, or after an order is issued and if the charged suspect disobeys the order then
against the suspect's will.
Part 8 -- How identifying procedures are to be done
52. Definitions
In this Part --
"dentist" means an individual who is registered under the Dental Act
1939;
"doctor" means an individual who is a medical practitioner within the
meaning of the Medical Act 1894;
"nurse" means an individual who is registered under Part 3 of the Nurses
Act 1992;
"qualified person", in relation to an identifying procedure, means a
person who is qualified under the regulations to do the
procedure.
EXPLANATION
This section provides definitions for the terms "dentist", "doctor", "nurse" and the
words "qualified person" in this Part.
53. Application of this Part
This Part applies if, under another provision of this Act, an identifying
procedure must be done in accordance with this Part.
EXPLANATION
Self-explanatory.
54. General requirements
(1) Before doing an identifying procedure on a person the officer who is
responsible for doing it must --
(a) identify himself or herself to the person; and
(b) if it is being done against the person's will, tell the person that
it is an offence to obstruct the carrying out of it.
(2) An intimate identifying procedure on a person --
(a) must be done in circumstances giving reasonable privacy to the
person; and
(b) must not involve the removal of more clothing than is
necessary for doing the procedure.
(3) A suspect must not be questioned in relation to an offence while he or she
is undergoing an identifying procedure.
(4) If an identifying procedure is to be done on an incapable person the
officer who is responsible for doing it must arrange for the incapable
person to have near him or her while the procedure is done a responsible
person or another person who can provide him or her with support.
(5) The number of people who are present while an identifying procedure is
being done (excluding a person who is present under subsection (4)) must
not exceed the number reasonably necessary to ensure the procedure is
done effectively and to ensure the safety of all present.
(6) If this Part requires a power to be exercised. in relation to a person by a
person with specific qualifications, the officer authorised to exercise the
power may authorise a person with those qualifications to exercise the
power.
(7) A person so authorised may exercise the power.
EXPLANATION
This section provides general requirements to be met in relation to doing an
identifying procedure where this Part applies, and includes:
· that before a procedure is done, the officer responsible for doing it must
identify themselves to the person and where the procedure is to be done
against their will advise them it is an offence to obstruct the doing of it
· where an "intimate" identifying procedure is being done, it must be done
in reasonable privacy and without the removal of more clothes than is
necessary
· a suspect must not be questioned while undergoing an identifying
procedure
· where an identifying procedure is being done on an incapable person, there
must be a responsible or support person near the incapable person
· the number of people present whilst the identifying procedure is done must
not be more than is reasonably necessary
· the ability for an officer to delegate the power to be exercised to a duly
qualified person as required
55. Sex of people doing procedures
(1) A person who does a non-intimate identifying procedure on a person may
be of either sex.
(2) A person who does an intimate identifying procedure on a person must be
of the same sex as that person unless the person who does it is --
(a) a doctor;
(b) a dentist,.
(c) a nurse; or
(d) if the intimate identifying procedure being done on that person
is the taking of a sample of that person's blood -- a qualified
person.
(3) A person who is present while an intimate identifying procedure is done
by a person on another person (excluding a person who is present under
section 54(4)) must, if practicable, be of the same sex as the person on
whom the procedure is done.
(4) Subsection (3) does not apply if the intimate identifying procedure is the
taking of a sample of the person's blood.
(5) If this Part requires a power to be exercised in relation to a person by a
person of the same sex as the person, the officer authorised to exercise the
power may authorise a person of that sex to exercise the power.
(6) A person so authorised may exercise the power.
(7) If it is necessary to ascertain the sex of a person before exercising a power
under this Part on the person and the sex of the person is uncertain to the
officer authorised to exercise the power--
(a) the officer must ask the person to indicate whether a male or a
female should exercise the power on the person and must act in
accordance with the answer; and
(b) in the absence of an answer, the person is to be treated as if of
the sex that the person outwardly appears to the officer to be.
EXPLANATION
(1). This sub section provides the ability for the current practices in relation to
non-intimate procedures, such as the taking of a persons fingerprints, to
continue to be able to be done by officers of either gender.
(2). This sub section provides all intimate identifying procedures carried out on a
person are to be done by a person of the same sex, unless the person
conducting the procedure is a doctor, dentist or nurse or if the procedure is the
taking of blood by a qualified person.
(3). Self-explanatory.
(4). Self-explanatory.
(5). Self-explanatory.
(6). Self-explanatory.
(7). This sub section places procedural requirements where the gender of the
person is uncertain to enable a persons sex to be ascertained or assumed.
56. Who may do an identifying procedure
When doing an identifying procedure on a person, a power in the Table to
this section may only be exercised by a person specified opposite the
power in the Table.
Table
Power Who may exercise it
A. Non-intimate identifying procedure
1. Photographing a person, other Doctor, nurse or qualified
than his or her private parts. person
2. Obtaining a print of the Qualified person
person's hands (including
fingers), feet (including toes)
or ears
3. Taking buccal swab from the Doctor, nurse or qualified
person person
4. Taking a sample of the Doctor, nurse or qualified
person's hair other than pubic person
hair
B. Intimate identifying procedure
1. Photographing an identifying Doctor, nurse or qualified
feature of the person on his or person
her private parts.
2. Taking a sample of the Doctor or nurse
person's pubic hair
3. Taking a sample of blood from Doctor, nurse or qualified
the person person
4. Taking a dental impression of Doctor or dentist
the person
EXPLANATION
This section sets out in an easy-to-read Table certain powers in relation to intimate
and non-intimate identifying procedures and who may exercise those powers.
57. Personal details may be obtained as well
An officer who is authorised under this Part to do an identifying procedure
on a person may request the person to give the officer any or all of the
person's personal details, and section 16(3) to (9), with any necessary
changes, apply to and in relation to the request.
EXPLANATION
An officer conducting an identifying procedure may require the personal details of the
person.
58. How samples and impressions are to be taken
(1) The taking under this Part of--
(a) a sample from a person's body; or
(b) an impression from any part of a person's body (including a
dental impression),
must be done by the least painful method that is known or available to the
person taking the sample or impression.
(2) The regulations may --
(a) prohibit or regulate methods by which samples, photographs,
prints or impressions are taken or procedures are done under
this Part;
(b) prescribe the equipment to be used for taking samples,
photographs, prints or impressions or doing procedures under
this Part.
EXPLANATION
Where a sample or impression is taken from a person, it is to be done by the least
painful method. There is provision to regulate the method and equipment used for
taking samples or impressions.
59. Procedures may be repeated
(1) In relation to any one investigation, a person may be requested --
(a) on more than one occasion to undergo an identifying procedure;
(b) to undergo more than one identifying procedure.
(2) Without limiting subsection (1), a person may be requested to undergo the
same identifying procedure on more than one occasion if, on a previous
occasion, the procedure was unsuccessful and it is reasonable to repeat the
procedure.
(3) A request under this section must be made in accordance with the other
provisions of this Act.
EXPLANATION
This section permits identifying procedures to be carried out more than once, as well
as different identifying procedures to be done in relation to the same investigation.
This section will allow for instances where results from identifying procedures are
unsuccessful or further and/or different procedures are required.
60. People not obliged to do procedures
Nothing in this Act requires a person --
(a) to do an identifying procedure on another person; or
(b) to take a photograph, print or impression of, or a sample from,
another person's body.
EXPLANATION
People cannot be forced to carry out the procedures contained in this Act against their
will.
Part 9 -- Use and destruction of identifying information
61. Definitions
In this Part --
"forensic database" means a DNA database or another database (whether
or not on a computer and however described) that contains --
(a) information in relation to the commission of an offence
that may identify the person who committed it;
(b) identifying information of people lawfully obtained
before the commencement of this Act;
(c) identifying information of people (alive or deceased)
obtained under this Act; or
(d) identifying information of missing persons and their
relatives by blood;
"identifying information", in relation to a person, means --
(a) any identifying particular obtained as a result of doing
an identifying procedure on the person;
(b) anything used in obtaining the identifying particular
such as an impression, negative, sample or swab; or
(c) the personal details of the person obtained when the
identifying particular was obtained,
and, for the purposes of this definition, it does not matter in
what form the information is kept.
For example: on paper or in an electronic or digitised form.
"identifying particular" has the same meaning as it has in section 11(1).
EXPLANATION
This section provides definitions for the terms "forensic database", "identifying
information" and "identifying particular" in this Part.
62. Identifying information of volunteers
(1) Unless subsection (2) applies, identifying information of a volunteer
obtained under Part 4 Division 2--
(a) must not --
(i) be compared with any information in a forensic
database; or
(ii) be put in a forensic database,
except in accordance with the decision of the volunteer, or
responsible person, made or changed under section 20;
(b) if it is a DNA profile and may be compared with information in
a DNA database -- may only be compared in accordance with
section 78; and
(c) must be destroyed in accordance with the decision of the
volunteer, or responsible person, made or changed under
section 20.
(2) If a volunteer from whom identifying information is obtained under Part 4
Division 2--
(a) is subsequently reasonably suspected of having committed a
serious offence, section 66 applies to the information; or
(b) is subsequently charged with a serious offence, section 67
applies to the information,
unless the information should have been destroyed.
EXPLANATION
Identifying information obtained from volunteers may only be used, compared or
destroyed in accordance with this section, that is in accordance with the decisions
made by the volunteer pursuant to s20. However, if a volunteer becomes an
uncharged suspect or a charged suspect by definition, then the identifying information
may be used in accordance with the provisions that relate to those classes of people.
63. Identifying information of deceased people
(1) Identifying information of a deceased person obtained under Part 4
Division 3--
(a) may be compared with other information, whether or not in a
forensic database, if a coroner has so directed, but, if it is a
DNA profile that may be compared with information in a DNA
database, may only be compared in accordance with section 78;
(b) may be put in a forensic database if a coroner has so directed;
and
(c) must be destroyed in accordance with any direction for
destruction made by a coroner.
(2) For the purposes of a comparison with information in a DNA database of
a DNA profile obtained from a deceased person whose personal details
are known --
(a) the DNA profile is taken to have been obtained from a
volunteer under Part 4 Division 2; and
(b) whether or not there are limits as to the forensic purposes for
which the DNA profile may be used is decided in accordance
with the direction of a coroner.
EXPLANATION
Identifying information obtained from deceased persons may only be used, compared
or destroyed in accordance with this section, that is at the direction of the Coroner.
64. Identifying information of police officers
(1) Identifying information of a person obtained under Part 4 Division 4 --
(a) subject to subsection (2) and with the approval of the
Commissioner of Police, may be compared with other
information, whether or not in a forensic database, for or in
connection with the forensic purposes prescribed for the
purposes of section 22(1);
(b) with the approval of the person, may be put in a forensic
database; and
(c) must be destroyed if the person, having ceased to be a person
who, under section 22, may be required to undergo an
identifying procedure, requests the Commissioner of Police to
destroy it.
(2) If that identifying information is a DNA profile, it may only be compared
with information in a DNA database in accordance with section 78, and
for the purposes of that section the DNA profile is taken to have been
obtained from a volunteer under Part 4 Division 2 for or in connection
with the forensic purposes prescribed for the purposes of section 22(1).
(3) An approval for the purposes of subsection (1) may apply generally or in
relation to a specific case or class of case.
EXPLANATION
Identifying information obtained from police officers may only be used, compared or
destroyed in accordance with this section.
65. Identifying information of involved people
(1) Unless subsection (2) applies, identifying information of an involved
person obtained under Part 5 --
(a) must not --
(i) be compared with any other information, whether or not
in a forensic database; or
(ii) be put in a forensic database,
except in accordance with, as the case requires --
(iii) the decision of the involved person, or responsible
person, made under section 28 or changed under section
30; or
(iv) an IP warrant (involved protected person);
(b) if it is a DNA profile and may be compared with information
on a DNA database -- may only be compared in accordance
with section 78; and
(c) must be destroyed if --
(i) within 2 years after the information is obtained no
person is charged with the offence in respect of which
the involved person is such a person; or
(ii) a person is so charged and criminal proceedings in
respect of the charge, including proceedings on an
appeal, are completed,
and destruction is requested under section 69 by or on behalf of
the involved person.
(2) If an involved person from whom identifying information is obtained
under Part 5 --
(a) is subsequently reasonably suspected of having committed the
offence in respect of which the person is an involved person
and the offence is a serious offence, section 66 applies to the
information; or
(b) is subsequently charged with the offence in respect of which
the person is an involved person and the offence is a serious
offence, section 67 applies to the information, unless the
information should have been destroyed.
EXPLANATION
Identifying information obtained from involved persons may only be used, compared
or destroyed in accordance with this section, that is in accordance with the decisions
made by the person or responsible person pursuant to s28 or s30. However, if an
involved person becomes an uncharged suspect or a charged suspect by definition,
then the identifying information may be used in accordance with the provisions that
relate to those classes of people.
66. Identifying information of uncharged suspects
(1) In this section
"relevant offence", in relation to a suspect, means --
(a) the offence that the suspect is suspected of having committed
and in relation to which identifying information is obtained
under Part 6; or
(b) an offence arising out of the same circumstances as that
offence.
(2) Unless subsection (3) applies, identifying information of a suspect
obtained under Part 6 --
(a) may be compared with other information, whether or not in a
forensic database, as soon as it is obtained, but, if it is a DNA
profile, may only be compared with information in a DNA
database in accordance with section 78;
(b) may be put in a forensic database as soon as it is obtained; and
(c) must be destroyed if--
(i) within 2 years after the information is obtained the
suspect is not charged with a relevant offence; or
(ii) the suspect is so charged but the charge is finalised
without a finding of guilt,
and destruction is requested under section 69 by or on behalf of
the suspect.
(3) If a suspect from whom identifying information is obtained under Part 6 is
subsequently charged with a relevant offence, section 67 applies to the
information unless the information should have been destroyed.
EXPLANATION
Identifying information obtained from uncharged suspects may only be used,
compared or destroyed in accordance with this section. If an uncharged suspect
becomes a charged suspect by definition, then the identifying information may be
used in accordance with the provisions that relate to that class of person.
67. Identifying information of charged suspects
(1) Identifying information of a suspect obtained under Part 7 --
(a) may be compared with other information, whether or not in a
forensic database, as soon as it is obtained, but, if it is a DNA
profile, may only be compared with information in a DNA
database in accordance with section 78;
(b) may be put in a forensic database as soon as it is obtained; and
(c) subject to subsection (3), must be destroyed if the charge
against the suspect is finalised without a finding of guilt and
destruction is requested under section 69 by or on behalf of the
suspect.
(2) Subsection (1) also applies to and in respect of identifying particulars
lawfully obtained before the commencement of Part 7.
(3) Subsection (1)(c) does not apply to identifying information of a suspect if,
in relation to the offence with which the suspect is charged --
(a) the suspect is found to be not mentally fit to stand trial under
the Criminal Law (Mentally impaired Defendants) Act 1996; or
(b) the suspect is found not guilty of the offence on account of
unsoundness of mind.
(4) If identifying information of a person is not destroyed because of the
operation of subsection (3) and the person --
(a) is subsequently reasonably suspected of having committed a
serious offence, section 66 applies to the information; or
(b) is subsequently charged with a serious offence, this section
applies to the information.
EXPLANATION
Identifying information obtained from charged suspects may only be used, compared
or destroyed in accordance with this section.
68. Results of matched information to be made available to suspects
(1) If--
(a) identifying information is obtained under this Act from a
person who, either then or subsequently, is reasonably
suspected of having committed an offence; and
(b) the information is compared with and found to match
information, whether or not in a forensic database, obtained
otherwise in relation to the investigation of the offence,
the officer in charge of the investigation of the offence must ensure that
the results of the comparison are made available to the person.
(2) The results of the comparison must be made available to the suspect as
soon as practicable after they are obtained unless to do so would prejudice
the investigation of any offence.
EXPLANATION
This section requires where identifying information is obtained from a person who at
the time is a suspect, or becomes a suspect, and a match is made to other information
associated with the offence, the results of the comparison are to be made available to
the person.
69. Request for destruction of identifying information
If another provision of this Act refers to the destruction of identifying
information being requested under this section; the request may be made
(a) if the identifying information is of a person who is an adult at
the time the request may be made by the adult;
(b) if the identifying information is of a person who is a child at the
time the request may be made by a responsible person; or
(c) if the identifying information is of a person who is an incapable
person at the tine the request may be made by a responsible
person or the Public Advocate,
and must be made to the Commissioner of Police.
EXPLANATION
This section prescribes a person who may request destruction of identifying
information to the Commissioner of Police.
70. Destroying identifying information
(1) If this Part requires identifying information to be destroyed on the
occurrence of an event or on a request, it must be destroyed as soon as
practicable after the event occurs or the request is made.
(2) If this Part requires identifying information to be destroyed, all means of
connecting the identifying information with the person whose identifying
information it is must be destroyed.
(3) If this Part requires identifying information to be destroyed, identifying
information that consists of a DNA profile of a person may be kept in a
DNA database for statistical purposes if other identifying information that
would enable the identity of the person to be discovered is destroyed.
EXPLANATION
This section requires identifying information to be destroyed as soon as practicable
when requested or the Act has a requirement of destruction. All means of linking the
information to the person must also be destroyed. A DNA profile, once it cannot be
linked to a person may remain on the database for statistical purposes.
71. Responsibility for destroying identifying information
(1) If information or anything else that must be destroyed under this Act is in
the possession of the WA Police, the Commissioner of Police must ensure
it is destroyed.
(2) If information or anything else that must be destroyed under this Act is in
the possession of a person other than the WA Police, that person must
ensure it is destroyed.
(3) If information or anything else that must be destroyed under this Act is in
a forensic database, the person who controls or manages the database must
ensure it is destroyed.
EXPLANATION
The Commissioner of Police must ensure information or any thing else in the
possession of the WA Police that must be destroyed, is destroyed.
Where information or anything else is in the possession of a person other than the WA
Police, that person must ensure its destruction.
The person who manages or controls a database must ensure the destruction of any
material on the database when the Act so requires.
72. Supreme Court may order information not to be destroyed
(1) If the Supreme Court is satisfied that there is good reason to keep
identifying information after the time when under this Part it must be
destroyed --
(a) the court may order that it be kept for a period set by the court;
and
(b) that order has effect according to its terms despite anything else
in this Part.
(2) The Supreme Court may at any time amend or cancel such an order.
(3) A person whose identifying information is the subject of an application
for an order under this section is entitled to be heard on the application.
EXPLANATION
Application may be made to the Supreme Court to retain identifying information
when the Act provides for its destruction. The subject of the identifying information
has a right to be heard in relation to such application.
73. Disclosure of identifying information
(1) A person who has access, or has had access, to identifying information
obtained under this Act, whether or not in a forensic database, may only
disclose the information in these circumstances --
(a) if the person is the person to whom the information relates;
(b) if he person to whom the information relates consents in
writing to the disclosure;
(c) for the purpose of the medical treatment of the person to whom
the information relates;
(d) if the information is already public;
(e) for a forensic purpose where the investigation or identification
is being done by the WA Police or by other law enforcement
officers prescribed by the regulations;
(f) for the purpose of a decision as to whether to prosecute an
offence;
(g) for the purpose of criminal proceedings for an offence;
(h) for the purpose of the medical treatment of a victim of an
offence that the suspect is reasonably suspected to have
committed;
(i) for the purpose of an investigation or inquest under the
Coroners Act 1996;
(j) for the purpose of civil or disciplinary proceedings that relate to
the way in which the identifying procedure that resulted in the
information was caried out;
(k) for the purpose of an investigation under the Parliamentary
Commissioner Act 1971 into the exercise of any power under
this Act;
(l) in accordance with an arrangement entered into under section
91(1);
(m) in accordance with the Mutual Assistance in Criminal Matters
Act 1987, or the Extradition Act 1988, of the Commonwealth;
(n) for a purpose prescribed by the regulations.
(2) This section does not apply in relation to information that cannot be used
to discover the identity of a person.
(3) A person who has access, or has had access, to identifying information,
whether or not in a forensic database, must not disclose the information
except as provided by this section.
Penalty: Imprisonment for 2 years,
EXPLANATION
This section provides the instances where identifying information may be disclosed.
An offence is created where information is disclosed otherwise than in accordance
with this section. A penalty of 2 years imprisonment applies.
74. Use of illegal identifying information
(1) In this section --
"illegal identifying information" means identifying information --
(a) that has been obtained in contravention of this Act or a
corresponding law of a participating jurisdiction; or
(b) that is required by this Act or a corresponding law of a
participating jurisdiction to have been destroyed but has not
been destroyed.
(2) For the purposes of this section a person uses illegal identifying
information if the person--
(a) supplies the information to another person --
(i) to be analysed;
(ii) to be put in a forensic database; or
(iii) to be compared with other information, whether or not
in a forensic database;
(b) analyses the information;
(c) compares the information with other information, whether or
not in a forensic database;
(d) puts the information in a forensic database;
(e) leaves the information in a forensic database.
(3) A person who knows or reasonably ought to know that identifying
information is illegal identifying information must not use the
information.
Penalty: Imprisonment for 2 years.
EXPLANATION
This section provides a definition for the term "illegal identifying information" and
provides that illegal identifying information is used improperly when:
· supplied to another to be analysed, put in a forensic database or compared with
other information
· analysed
· compared with other information (whether or not in a database)
· put into a database
· the information is left in a database
An offence is created for persons who improperly use illegal identifying information.
Penalty 2 years imprisonment.
75. Improper use of information obtained under Act
A person who --
(a) compares information obtained in accordance with this Act
with other information, whether or not in a forensic database,
otherwise than in accordance with this Part; or
(b) puts information obtained in accordance with this Act in a
forensic database otherwise than in accordance with this Part,
Commits an offence
Penalty: Imprisonment for 2 years.
EXPLANATION
This section provides a definition for the term "legal identifying information" and
provides legal identifying information is used improperly when:
· it is compared with other information other than in accordance with this Part
· the information is put in a database other than in accordance with this Part
An offence is created for persons who improperly use legal identifying information.
A penalty of 2 years imprisonment applies.
Part 10-- DNA databases
76. Definitions
In this Part --
"crime scene index" means an index of DNA profiles derived from
material obtained from -
(a) a place (whether within or outside Australia) where an
offence under the law of this State, another State, a
Territory or the Commonwealth was, or is reasonably
suspected to have been, committed;
(b) on or in the body of a person who was involved when
such an offence was committed, whether as a suspect
for, or as a victim of, or as a witness to, the offence;
(c) on or in anything worn or carried by a person referred to
in paragraph (b) at the time of the offence; or
(d) anything in respect of which the offence was committed
or that was used in committing, or in connection with
committing, the offence,
together with information about when and where the DNA
profile was obtained, but does not include the DNA profile of a
person reasonably suspected to have committed the offence that
was obtained from that person;
"DNA database" means a database (whether or not on a computer and
however described) that contains --
(a) the following indexes of DNA profiles --
(i) a crime scene index;
(ii) a missing persons index;
(iii) an offenders index;
(iv) a suspects index;
(v) an unknown deceased persons index;
(vi) a volunteers (limited purposes) index;
(vii) a volunteers (unlimited purposes) index;
(b) a statistical index; and
(c) if an index is prescribed by the regulations for the
purposes of this definition -- that index.
"DNA database index" means an index of DNA profiles mentioned in
paragraph (a) of the definition of "DNA database";
"missing persons index" means an index of the DNA profiles of --
(a) missing people; or
(b) volunteers who are relatives by blood of such people,
together with the personal details of the people whose profiles
they are to the extent that those details are known;
"offenders index" means an index of the DNA profiles obtained --
(a) under Part 6 or 7 from suspects each of whom has been
subsequently found guilty of the offence that he or she
was suspected of having committed;
(b) under Schedule 1 clause 6 from remand prisoners each
of whom has been subsequently found guilty of the
offence that he or she was suspected of having
committed;
(c) under Schedule 1 clause 6 from serious offenders; or
(d) under the corresponding laws of participating
jurisdictions from people who have been convicted of
offences under the laws of those jurisdictions,
together with the personal details of the people whose profiles
they are;
"statistical index" means an index of information --
(a) that is obtained from the analysis of material obtained
from people under this Act or under the corresponding
laws of participating jurisdictions;
(b) that does not contain the personal details of any person
whose DNA profile is in the index;
(c) that is compiled for statistical purposes; and
(d) that cannot be used to discover the identity of people
from whom the material was obtained,
and includes a statistical index lawfully compiled for statistical
purposes before the commencement of this Part;
"suspects index" means an index of the DNA profiles obtained --
(a) under Part 6 or 7 from suspects each of whom has not
been found guilty of the offence that he or she was
suspected of having committed;
(b) under Schedule 1 clause 3 from remand prisoners; or
(c) under the corresponding laws of participating
jurisdictions from people who are suspected of having
committed, but who have not been convicted of,
offences under the laws of those jurisdictions,
together with the personal details of the people whose profiles
they are;
"unknown deceased persons index" means an index of the DNA
profiles obtained from deceased people whose personal details
are unknown, together with information about when and
where the DNA profile was obtained;
"volunteers (limited purposes) index" means an index of the DNA
profiles obtained --
(a) under Part 4 Division 2 from volunteers;
(b) under Part 5 from victims and witnesses;
(c) under the corresponding laws of participating
jurisdictions from similar people; or
(d) under Part 4 Division 3, or under the corresponding laws
of participating jurisdictions, from deceased people,
in respect of which there are limits as to the forensic purposes
for which they may be used, together with the personal details
of the people whose DNA profiles they are;
"volunteers (unlimited purposes) index" means an index of the DNA
profiles obtained --
(a) under Part 4 Division 2 from volunteers;
(b) under Part 5 from victims and witnesses;
(c) under the corresponding laws of participating
jurisdictions from similar people; or
(d) under Part 4 Division 3, or under the corresponding laws
of participating jurisdictions, from deceased people,
in respect of which there are no limits as to the forensic
purposes for which they may be used, together with the
personal details of the people whose DNA profiles they are.
EXPLANATION
This section provides definitions for indexes that appear in this Part. Also provides a
definition for the term "DNA database".
77. DNA profiles lawfully obtained before commencement of Part
A DNA profile of a person lawfully obtained for a forensic purpose before
the commencement of this Part and lawfully retained may be put in the
statistical index for statistical purposes if the information put in the index
does not include the personal details of that person.
EXPLANATION
This section provides an ability to utilise data in existence before commencement of
the Act, for statistical purposes.
78. Permitted comparisons with DNA database indexes
(1) A DNA profile, whether or not in a DNA database, must not be compared
with a DNA profile that is in a DNA database index if the Table to this
section does not permit the comparison.
(2) If the Table to this section permits a comparison "if within limit", the
comparison must not be made if the forensic purposes for which the DNA
profile may be used, as decided under Part 4 Division 2 or Part 5, do not
include the purpose for which the comparison is sought to be made.
DNA profile to Information in DNA database
be compared A B C D E F G
with Crime Suspects Volunteers Volunteers Offenders Missing Unknown
information in scene index (limited (unlimited index persons deceased
DNA database index purposes) purposes) index persons
index index index
1 From crime Yes Yes If within Yes Yes Yes Yes
scene limit
2 Of suspect Yes No No Yes Yes Yes Yes
3 Of If No No No If within If within If within
volunteer within limit limit limit
or involved limit
person
(limited
purpose)
4 Of Yes No No No Yes Yes Yes
volunteer
or involved
person
(unlimited
purposes)
5 Of offender Yes Yes No Yes Yes Yes Yes
6 Of missing Yes Yes If within Yes Yes Yes Yes
person limit
7 Of See s See s 63 If within See s 63 See s 63 See s 63 See s 63
unknown 63 limit
deceased
person
EXPLANATION
This section prescribes that a DNA profile may only be compared with a DNA
database index in accordance with the Table in this section. Where the term `if within
limit' appears it imposes a requirement that the profile may only be compared in
accordance with the limit placed on it by the person whose profile it is.
79. Duties of database managers
(1) In this section --
"database manager" means a person who has the control and
management of a DNA database.
(2) A database manager must ensure that the DNA database is used only for
the following purposes --
(a) to contain only the information that under this Act may be put
in the database together with any information that is reasonably
necessary to administer the database;
(b) to compare the information in the database with other
information, whether or not in the database, in accordance with
this Act;
(c) for the purposes of an arrangement entered into under section
91(1).
EXPLANATION
This section provides a definition of the term "database manager", and stipulates the
purposes for which the database manager must ensure it is used for. The database:
· may only contain information that this Act authorises, together with
administrative information
· can only be used to compare information in accordance with this Act
· may be used for information sharing with other jurisdictions authorised by this
Act
80. Operators of DNA databases to be authorised
(1) The Minister, in writing, may authorise a person, other than a police
officer, to create, keep, operate, control or manage a DNA database.
(2) The Minister may at any time cancel such an authorisation.
(3) A person must not create, keep, operate, control or manage a DNA
database except with the written authority of the Minister.
Penalty: $250 000.
EXPLANATION
This section provides the Minister with authority to appoint a person (other than a
police officer) to be manager of a DNA database. Also creates an offence where a
person creates, keeps, operates, controls or manages a database without authority from
the Minister. Penalty of $250 000 applies.
Part 11 -- Admissibility of evidence
81. Evidence of refusal of consent etc.
(1) Evidence that a person refused to or did not consent, or withdrew consent,
to an identifying procedure being done on the person is not admissible in
proceedings against the person except--
(a) in proceedings against him or her for an offence alleged to have
been committed while the identifying procedure was being
done on him or her; or
(b) to establish or rebut an allegation that an officer investigating
the commission of an offence acted contrary to law in doing the
investigation.
(2) Evidence that a responsible person refused to or did not consent, or
withdrew consent, to an identifying procedure being done on a protected
person is not admissible in proceedings against the responsible person, or
the protected person, except --
(a) in proceedings against him or her for an offence alleged to have
been committed while the identifying procedure was being
done on the protected person; or
(b) to establish or rebut an allegation that an officer investigating
the commission of an offence acted contrary to law in doing the
investigation.
EXPLANATION
Evidence of a person's (or in the case of a protected person a responsible person's)
refusal to consent or withdrawal of consent to an identifying procedure is generally
inadmissible against the person unless:
· it is in proceedings for an offence alleged to have been committed while the
procedure was being carried out (e.g. assaulting a public officer)
· to establish or negate an allegation that an officer acted illegally in relation to
the investigation
82. Evidence of conduct of procedure
Evidence of how an identifying procedure was done is admissible in
proceedings in court against a person --
(a) to establish or rebut an allegation that unreasonable force was
used to do the procedure;
(b) in connection with deciding the admissibility of a confession or
other evidence adverse to the person that the person alleges was
induced or obtained by the use of unreasonable force; or
(c) to establish or rebut an allegation that the procedure was not
done in accordance with this Act.
EXPLANATION
Evidence of how an identifying procedure was done is admissible in court:
· when it is to establish or negate an allegation that unreasonable force was used
to do the procedure
· when deciding the admissibility of other confessional or adverse evidence
where the person alleges it was obtained by the used of unreasonable force
· to establish or negate an allegation the procedure was not done in accordance
with this Act.
83. Evidence obtained illegally
(1) This section applies to the following evidence --
(a) anything taken (including a print, photograph, sample,
impression or record) in the course of an identifying procedure;
and
(b) any evidence derived from a thing referred to in paragraph (a)
or the procedure.
(2) This section does not apply to evidence to which section 84 applies.
(3) If--
(a) an identifying procedure is done on a person; and
(b) any requirement of this Act in relation to doing the procedure,
including a requirement that arises before or after the actual
procedure, is contravened,
evidence to which this section applies is not admissible in any criminal
proceedings against the person in a court unless --
(c) the person does not object to the admission of the evidence;
(d) the court decides otherwise under section 86; or
(e) the court is of the opinion that the contravention arose out of a
mistaken but reasonable belief as to the age of a child.
EXPLANATION
This section applies to evidence from an identifying procedure done on a person,
where any requirement of this Act is contravened. Evidence from such contravention
is not admissible unless the person does not object, the court decides otherwise under
section 86, or the court is of the opinion the contravention arose out of a mistaken but
reasonable belief as to the age of a child.
84. Evidence kept illegally
If under Part 9 identifying information must be destroyed at a certain time,
evidence of that information --
(a) is not admissible in a court after that time if it is adduced by the
prosecution against a person; but
(b) may be admitted if it is adduced by that person.
EXPLANATION
Where identifying information is required to be destroyed, evidence of that
information cannot be adduced unless it is by the person to whom the information
relates.
85. Evidence from illegal use of information
Any information obtained as a result of--
(a) identifying information being put in a DNA database otherwise
than in accordance with this Act; or
(b) identifying information being compared with other identifying
information, whether or not in a DNA database, otherwise than
in accordance with this Act,
is not admissible in criminal proceedings against a person in a court unless
the court decides otherwise under section 86.
EXPLANATION
Self-explanatory.
86. Court may admit inadmissible evidence
(1) This section applies if under another section a court may make a decision
under this section in relation to evidence that is not admissible in
proceedings in the court.
(2) The court may decide to admit the evidence if it is satisfied that the
desirability of admitting the evidence outweighs the undesirability of
admitting the evidence.
(3) In making a decision under subsection (2) the court is to take into account
--
(a) any objection to the evidence being admitted by the person
against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence
is relevant;
(c) the seriousness of any contravention of this Act in obtaining the
evidence;
(d) whether any contravention of this Act in obtaining the evidence
was intentional or reckless;
(e) whether any contravention of this Act in obtaining the evidence
arose from an honest and reasonable mistake of fact;
(f) the probative value of the evidence;
(g) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its
admission.
EXPLANATION
If another section refers to this section, there is an ability for a court to admit evidence
that would otherwise be inadmissible under this Act. The court must be satisfied that
it is more desirable to admit the evidence than not, and may consider:
· any objection by the person
· the seriousness of the offence
· the seriousness of any contravention of this Act
· whether the contravention was reckless or intentional
· whether the contravention arose from an honest but reasonable mistake of fact
· the probative value of the evidence
· any other matter the court thinks fit
Part 12 -- Enforcement elsewhere in Australia
87. Definitions
In this Part --
"authorised officer", in relation to a participating jurisdiction, means a
person holding an office in that jurisdiction that is prescribed
under section 88;
"corresponding law" means a law prescribed under section 88 to be a
corresponding law;
"forensic order" means an order or warrant, made or issued under a
corresponding law in respect of a person, that authorises the
examination of, and the obtaining of material from, the
person's body for forensic purposes;
"participating jurisdiction" means another State, a Territory or the
Commonwealth in which a corresponding Law is in force;
"Registrar" means a person prescribed under section 88 to be the
Registrar.
EXPLANATION
This section provides definitions for specific terms that appear within this Part.
88. Prescribing corresponding laws etc.
The regulations may --
(a) prescribe a law of another State, a Territory or the
Commonwealth that relates to the examination of, and the
obtaining of material from, people's bodies for forensic
purposes to be a corresponding law for the purposes of this Act;
(b) prescribe an office in a participating jurisdiction the holder of
which is an authorised officer for the purposes of this Part;
(c) prescribe an office in this State, or in a participating
jurisdiction, the holder of which is the Registrar for the
purposes of this Part; and
(d) any matters that are necessary or convenient to be prescribed in
relation to the registration and carrying out of forensic orders.
EXPLANATION
This section empowers the regulations to this Act to authorise:
· certain laws to be corresponding laws
· holders of particular offices in participating jurisdictions to be authorised
persons
· a holder of a particular office to be Registrar
· any other matter in relation to the registration and carrying out of a
forensic order
89. Registration of forensic orders
(1) An authorised officer in a participating jurisdiction may request the
Registrar to register, for the purposes of this Part, a forensic order that has
been made under a corresponding law of that jurisdiction.
(2) A request for the registration of a forensic order must be in writing and be
accompanied by a copy of the order, certified by the person who issued it.
(3) The Registrar must accede to a request made under this section for the
registration of a forensic order if satisfied that the order was made in
accordance with the corresponding law concerned.
(4) On the request of an authorised officer in a participating jurisdiction the
Registrar may at any time cancel the registration of a forensic order.
EXPLANATION
This section enables forensic orders from other jurisdictions to be registered with the
Registrar in this State, and requires any requests for registration to be in writing with a
certified copy of the order. The registration of a forensic order may be cancelled at
any time.
90. Forensic orders registered in WA may be executed in WA
(1) In this section --
"registered forensic order" means a forensic order that is registered
under section 89 for the purposes of this Part.
(2) A registered forensic order has effect in this State according to its terms
and, subject to this section, may be carried put accordingly.
(3) A police officer may carry out a registered forensic order in this State.
(4) If a registered forensic order authorises the carrying out of an identifying
procedure on a person, the procedure must be done in accordance with
Part 8.
(5) If a registered forensic order authorises the carrying out of acts on a
person other than acts that may be done in the course of an identifying
procedure under this Act, the order must be carried out in accordance with
the corresponding law under which it was made.
EXPLANATION
This section enables registered forensic orders from a participating jurisdiction to be
carried out by a police officer in this State. If the order provides for acts to be done
that are different from acts authorised under this Act, then the order must be carried
out in accordance with the law from the participating jurisdiction.
91. Arrangements for sharing information
(1) The Minister may, with a Minister of a participating jurisdiction who is
responsible for the administration of a corresponding law, enter into
arrangements under which --
(a) information from the DNA database of this State is transmitted
to the authorised officer of that jurisdiction;
(b) information from the DNA database of that jurisdiction is
transmitted to the Commissioner of Police;
(c) for the purposes of law enforcement in that jurisdiction, law
enforcement officers of that jurisdiction are entitled to have
access to identifying and other information, whether or not in a
forensic database, held by the WA Police; or
(d) for the purposes of law enforcement in this State, law
enforcement officers in this State are permitted to have access
to identifying and other information, whether or not in a
forensic database, held by law enforcement officers in that
jurisdiction.
(2) Information that is transmitted under an arrangement made under this
section must not be recorded or maintained in any database of information
that may be used to discover the identity of a person, or to obtain
information about an identifiable person, at any time after this Act or a
corresponding law requires the information or the forensic material to
which it relates to be destroyed.
EXPLANATION
The Minister may enter into agreements with other Ministers of participating
jurisdictions for the sharing of identifying information. The information to be shared
includes:
· information from the WA DNA database
· information from the participating jurisdictions DNA database
· the ability for law enforcement officers of other jurisdictions to have access to
information stored by WA Police
· law enforcement officers in this State may have access to information held by
other jurisdictions
This section provides that information transmitted must not be recorded in a manner
that may identify persons whose identifying information is required to be destroyed.
Part 13 -- Miscellaneous
92. Legal protection for people acting under this Act
(1) This section does not apply to a person to whom section 137 of the Police
Act 1892 applies.
(2) In this section a reference to the doing of anything includes a reference to
an omission to do anything.
(3) An action in tort does not lie against a person for anything that the person
has done, in good faith, in the exercise or purported exercise of a power
under this Act.
(4) The protection given by this section applies even though the thing done as
described in subsection (3) may have been capable of being done whether
or not this Act had been enacted.
EXPLANATION
This section provides civil protection for persons, other than police officers, for any
acts done in good faith in the exercise of any power in this Act. Police officers will
utilise the provisions contained in s. 137 of the Police Act 1892.
93. Regulations
(1) The Governor may make regulations prescribing all matters that are
required or permitted by this Act to be prescribed, or are necessary or
convenient to be prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may --
(a) provide for the procedure to be followed in and in relation to
doing an identifying procedure;
(b) create offences with statutory penalties not exceeding $5000.
EXPLANATION
The Governor may make regulations for this Act.
94. Review of Act
(1) The Minister is to carry out a review of the operation and effectiveness of
this Act as soon as is practicable after the expiry of 5 years from its
commencement.
(2) The Minister is to prepare a report based on the review and, as soon as is
practicable after the report is prepared, is to cause the report to be laid
before each House of Parliament.
EXPLANATION
The Minister must review the Act after 5 years and provide a report to be tabled in
each House of Parliament.
Part 14 -- Temporary provisions
95. Identifying particulars may be taken from people in custody and
others (Schedule 1)
(1) Schedule 1 has effect.
(2) This section and Schedule 1 cease to have effect on the third anniversary
of the commencement of this section.
EXPLANATION
This section provides for the effect of Schedule 1 relating to the obtaining of
identifying particulars from people in custody and others. A sunset provision of 3
years accompanies this section.
96. Consequential amendments (Schedule 2)
Schedule 2 has effect.
EXPLANATION
This section provides that Schedule 2 amends other Acts consequentially.
Schedule 1 -- Obtaining and using identifying particulars of
people in custody and others
1. Definitions
In this Schedule --.
"identifying information", in relation to a person, means --
(a) any identifying particular obtained as a result of doing
an identifying procedure on the person;
(b) the personal details of the person obtained when the
identifying particular was obtained;
"identifying particular", in relation to a person, means --
(a) a print of the person's hands (including fingers), feet (including
toes) or ears;
(b) a photograph of the person (including of an identifying feature
of the person);
(c) the person's DNA profile;
"remand prisoner" means a person who has been charged with, but not
convicted of, a serious offence and who has been remanded in
custody by a court in relation to the offence;
"serious offender" means a person who has been found --
(a) guilty of a serious offence; or
(b) not guilty of a serious offence on account of
unsoundness of mind.
EXPLANATION
This section provides definitions for the terms "identifying information", "identifying
particular", "remand prisoner" and "serious offender" when used in this Schedule.
2. How identifying procedures are to be done
An identifying procedure that under this Schedule may be done on a
person, whether or not against the will of the person, must be done in
accordance with Part 8.
EXPLANATION
Where identifying procedures are conducted under this Schedule, they must be done
in accordance with Part 8 of the Act.
3. Request for prisoner on remand to undergo identifying procedure
(1) If a police officer reasonably suspects that any or all of a remand
prisoner's identifying particulars --
(a) are not or may not be held by the WA Police; or
(b) are or may be needed in order to verify the prisoner's identity
with identifying particulars already held by the WA Police,
the police officer may request the prisoner to consent to an identifying
procedure being done on the prisoner for the purpose of obtaining one or
more of the prisoner's identifying particulars.
(2) A police officer who requests a remand prisoner to consent to an
identifying procedure being done on the prisoner must at the time inform
the prisoner of these matters --
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared
with or put in a forensic database;
(d) the circumstances in which destruction may be requested under
section 69;
(e) that the procedure may provide evidence that could be used in a
court against the prisoner;
(f) that if the prisoner does not consent or withdraws consent to the
procedure --
(i) the prisoner may be ordered to undergo the procedure;
and
(ii) the procedure may be done on the prisoner against the
prisoner's will if the prisoner does not obey the order.
EXPLANATION
Police may request remand prisoners to undergo a identifying procedure and at that
time inform the prisoner:
· the purpose of the procedure and how it will be done
· that the information may be compared with or put on a database
· the circumstances in which destruction may be requested
· that the procedure may provide evidence that may be used against them
· that they may be ordered to undergo the identifying procedure and it may
be done against their will.
4. Request for serious offender to undergo identifying procedure
(1) This clause applies to a serious offender who is --
(a) in custody in a detention centre (as defined in section 3 of the
Young Offenders Act 1994), whether or not serving a sentence;
(b) subject to a supervised release order made under the Young
Offenders Act 1994;
(c) in custody in a prison (as defined in the Prisons Act 1981),
whether or not serving a sentence;
(d) subject to an intensive supervision order made under the
Sentencing Act 1995;
(e) subject to an early release order made under the Sentence
Administration Act 1995 or the Sentence Administration Act
1999; or
(f) subject to a custody order made under the Criminal Law
(Mentally Impaired Defendants) Act 1996.
(2) If a police officer reasonably suspects that any or all of a serious
offender's identifying particulars --
(a) are not or may not be held by the WA Police; or
(b) are or may be needed in order to verify the offender's identity
with identifying particulars already held by the WA Police,
the police officer may request the offender to consent to an identifying
procedure being done on the offender for the purpose of obtaining one or
more of the offender's identifying particulars.
(3) A police officer who requests a serious offender to consent to an
identifying procedure being done on the offender must at the time inform
the offender of these matters --
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared
with or put in a forensic database;
(d) the circumstances in which destruction may be requested under
section 69;
(e) that the procedure may provide evidence that could be used in a
court against the offender;
(f) that if the offender does not consent or withdraws consent to
the procedure --
(i) the offender may be ordered to undergo the procedure;
and
(ii) the procedure may be done on the offender against the
offender's will if the offender does not obey the order.
EXPLANATION
This section provides the ability to obtain identifying particulars from existing serious
offenders and specifies the conditions under which those particulars may be taken. If
the serious offender is not already in custody, a police officer may arrest and detain
the person for the purpose of obtaining the particulars. The identifying procedure is
to be requested of the serious offender and the police officer making the request is to
inform them:
· the purpose of the procedure and how it will be done
· that the information may be compared with or put on a database
· the circumstances in which destruction may be requested
· that the procedure may provide evidence that may be used against them
· that they may be ordered to undergo the identifying procedure and it may
be done against their will
5. Request and giving of information to be recorded
(1) A police officer who makes a request under clause 3 or 4 must ensure that
a record is made of the request, of the information given under the clause
and of the remand prisoner's or serious offender's responses (if any).
(2) The record must be an audiovisual record or in writing.
EXPLANATION
This section provides that any requests by a police officer under section 3 or 4 and
any response is to be recorded audio visually or in writing.
6. When identifying procedure may be done
(1) If--
(a) under clause 3 a request is made to a remand prisoner or under
clause 4 to a serious offender;
(b) the prisoner or offender is informed in accordance with clause 3
or 4, as the case requires; and
(c) the prisoner or offender consents to the identifying procedure
being done,
then the identifying procedure may be done on the prisoner or offender, as
the case requires.
(2) If.--
(a) under clause 3 a request is made to a remand prisoner or under
clause 4 to a serious offender;
(b) the prisoner or offender is informed in accordance with clause 3
or 4, as the case requires; and
(c) the prisoner or offender does not consent or withdraws consent
to the identifying procedure,
the police officer may order the prisoner or offender, as the case requires,
to undergo the procedure.
(3) If a remand prisoner does not obey an order made under subclause (2), a
police officer may do the identifying procedure on the prisoner against the
prisoner's will.
(4) If a serious offender does not obey an order made under subclause (2), a
police officer may --
(a) if the offender is not in custody -- without a warrant arrest and
detain the offender for a reasonable time in order to do the
identifying procedure; and
(b) do the identifying procedure on the offender against the
offender's will.
(5) Identifying information of a remand prisoner or serious offender --
(a) may be compared with other information, whether or not in a
forensic database, as soon as it is obtained, but, if it is a DNA
profile, may only be compared with information in a DNA
database in accordance with section 78;
(b) may be put in a forensic database as soon as it is obtained; and
(c) must be destroyed if--
(i) in the case of a remand prisoner -- the charge, or all
charges if there are more than one, in respect of which
the prisoner was remanded in custody are finalised
without a finding of guilt and destruction is requested
under section 69 by or on behalf of the prisoner; or
(ii) in the case of a serious offender -- the serious offender
ceases to be a serious offender and destruction is
requested under section 69 by or on behalf of the
offender.
EXPLANATION
This section provides that the identifying procedure may be carried out when:
· the person agrees to a request made under section 3 or 4
· the person does not consent or withdraws consent and an order is issued
· the person does not obey the order and the procedure is done against the
persons will and by arresting the person where necessary
The information derived from the procedure may be compared and put on a database
immediately.
7. Department of Justice CEO to assist WA Police
(1) In order to facilitate the exercise of the powers in this Schedule, the chief
executive officer of the appropriate department --
(a) is to provide the Commissioner of Police with such information
as the Commissioner reasonably needs;
(b) is to permit police officers to have reasonable access to
detention centres, prisons, community corrections centres and
other places under the control and management of that
department; and
(c) is to provide reasonable assistance to police officers.
(2) In subclause (1) --
"appropriate department" means, as the case requires --
(a) the department principally assisting the Minister who
administers the Young Offenders Act 1994; or
(b) the department principally assisting the Minister who
administers the Prisons Act 1981.
EXPLANATION
This section provides for the Department of Justice to assist police to facilitate the
powers of this Schedule.
8. Destroying identifying information
Sections 69, 70, 71 and 72, with any necessary changes, apply to and in
respect of identifying information obtained under this Schedule.
EXPLANATION
The destruction requirements of the Act apply to this Schedule.
Schedule 2-- Consequential amendments
[s.93]
1. Bail Act 1982
Section 12 is amended by deleting "and section 50AA of the Police Act
1892." and inserting instead --
"section 50AA of the Police Act 1892 and Parts 6 and 7 of the Criminal
Investigation (Identifying People)Act 2001."
2. Conservation and Land Management Act 1984
(1) Section 124(1)(c) is deleted.
(2) Section 124(2) is repealed and the following subsection is inserted instead
--
"(2) The offices of ranger and conservation and land management
officer are each prescribed to be public officers for the purposes
of the Criminal Investigation (Identifying People) Act 2001 and
as such may exercise the powers in Part 3 of that Act."
(3) Section 124(3) is repealed.
3. Court Security and Custodial Services Act 1999
Schedule 2 clause 7(2) is repealed and the following subclause
is inserted instead --
"(2) Photographs, fingerprints, palmprints or other identification
particulars of a person in custody that are taken under subclause
(1) must be destroyed if --
(a) within 2 years after the particulars are obtained the
person is not charged with an offence arising out of the
circumstances by reason of which the person is in
custody; or
(b) the person is so charged but the charge is finalised
without the person being found guilty.
4. The Criminal Code
Section 236 of The Criminal Code is amended as follows:
(a) in the third paragraph, by deleting "of the person's blood, hair
(from any part of the body), nails or saliva, or";
(b) in the third paragraph, by deleting "or obtainable by a buccal
swab,";
(c) after the last paragraph, by inserting the following paragraph --
"This section does not authorise the taking of an identifying
particular (within the meaning of section 32 of the Criminal
Investigation (Identifying People) Act 2001) and does not apply
to such an identifying particular taken under that Act."
5. Parks and Reserves Act 1895
(1) Section 7A(1) is amended as follows:
(a) after paragraph (b), by inserting --" and ";
(b) after paragraph (c), by deleting "; and" and inserting a comma
instead;
(c) by deleting paragraph (d).
(2) After section 7A(1) the following subsection is inserted --
"(la) The offices of member of the Board and ranger appointed under
section 7 are each prescribed to be public officers for the
purposes of the Criminal Investigation (Identifying People) Act
2001 and as such may exercise the powers in Part 3 of that
Act."
6. Police Act 1892
(1) Section 50 is repealed.
(2) Section 50AA(1) is amended after "summary conviction," by inserting--
"other than an offence that is a serious offence within the
meaning of the Criminal Investigation (Identifying People) Act
2001,"
7. Waterways Conservation Act 1976
(1) Section 63(7) is amended as follows:
(a) after paragraph (b), by inserting --
" and "-
(b) after paragraph (c), by deleting "; and" and inserting a comma
instead;
(c) by deleting paragraph (d)..
(2) After section 63(7) the following subsection is inserted --
"(7a) The offices referred to in subsection (1) are each prescribed to
be public officers for the purposes of the Criminal Investigation
(Identifying People) Act 2001 and as such may exercise the
powers in Part 3 of that Act."
8. Wildlife Conservation Act 1950
(1) Before section 20(2) the following subsection is inserted --
"(1) The office of wildlife officer is prescribed to be a public
officer for the purposes of the Criminal Investigation
(Identifying People) Act 2001 and as such may exercise the
powers in Part 3 of that Act. "
(2) Section 20(2) is amended as follows:
(a) after paragraph (b), by deleting the semicolon and inserting a
full stop instead;
(b) by deleting paragraph (c).
EXPLANATION
This schedule provides consequential amendments to other Acts affected by this Act.