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Commonwealth forensics

Information about when forensic procedures can be taken under Commonwealth law.

Rules about conducting forensic procedures under Commonwealth law are very similar to laws in Victoria. Police officers can obtain forensic sample after an adult suspect has given their informed consent. If the person does not consent, police can seek a court order to compel the person to submit to a forensic procedure.

Under some circumstances a senior police officer can give authority for a compulsory non-intimate sample to be taken from a suspect.

There are also special requirements for Aboriginal and Torres Strait Islander suspects.

How a forensic procedure is defined

Forensic material is defined more broadly than under Victorian law. It includes hand, foot, finger and toe prints, photographs, video recordings, casts and impressions as well as samples taken from a person's body.

A forensic procedure can be either intimate or non-intimate but specifically excludes an intrusion into person's body cavity with the exception of taking a mouth sample for the purpose of identifying that person.

See s. 23WA—Crimes Act 1914 (Cth)(opens in a new window).

What is an intimate forensic procedure?

Intimate forensic procedure is the external examination, sample, swab, scraping, washing, vacuum suction, lifting by tape from; photographing or video recording, or taking cast or impression of a wound from:

  • the genital, anal or buttock areas, or
  • the breasts of person who identifies as female.

It includes taking blood, saliva, pubic hair samples or dental impressions.

Note: The definition excludes taking blood by fingerprick as an intimate forensic procedure.

See s. 23WA—Crimes Act 1914 (Cth)(opens in a new window).

What is a non-intimate forensic procedure?

A non-intimate forensic procedure means the examination, swab, washing of a body part, vacuum suction, by scraping or by lifting by tape from an external part of the body excluding the genitals, buttock, anal areas or the breasts of a person who identifies as female.

It includes taking a sample:

  • of hair (excluding public hair)
  • of blood by a finger prick
  • from a nail or under a nail;

It also includes taking a hand, finger foot or toe print or photographing or video recording.

See s. 23WA—Crimes Act 1914 (Cth)(opens in a new window).

How forensic procedures may be authorised

A table in s. 23WC explains what level of authority is required for different forensic procedures.

See 23WC—Crimes Act 1914 (Cth)(opens in a new window).

When a court order is required

Court orders are required before a forensic procedure can be taken from:

  • a child (person from 10 years up to 18 years old), or
  • a person who is deemed incapable of giving their informed consent.

Admissibility of Evidence

Forensic evidence that is obtained in breach of any of the Forensic procedure provisions is inadmissible unless Court rules that the admission of that evidence can be justified under the circumstances.

Time Limits

Strict time limits apply to restrict the time that particular categories of suspects are able to be held before a forensic procedure is carried out.

Destruction of forensic material

Forensic material must be destroyed within 12 months if person has not been convicted of any offence. If person is convicted samples may be retained for longer.

Where person is convicted of a serious offence (offence punishable for maximum 5 years prison or more) Act allows blood samples to be taken if there are reasonable grounds for belief that blood sample taken after conviction will assist future investigations.

Forensic procedures to determine age

Procedures can also be used to determine the age of person who is suspected of involvement in an offence.

This commonly involves taking an X—ray for analysis to indicate likely age of a suspect. (This is important so that if investigating officers suspect person is under 18 they can apply the rules of investigation procedure that are appropriate for a child suspect).

See Part 1AA, Division 4A—Crimes Act 1914 (Cth)(opens in a new window).

Aboriginal and Torres Strait Islander people

Where police believe that person is a Torres Strait Islander or an Aboriginal person they must not ask that person to give their informed consent for a forensic procedure unless an interview friend is present or unless that person has clearly waived the right to have an interview friend present.

This requirement may be waived where a senior officer believes on reasonable grounds that the person is not at a disadvantage in relation to their election to consent (taking level of education and understanding into consideration).

Police must notify a representative of an Aboriginal Legal Service before asking the suspected person to submit to a voluntary forensic procedure.

See s. 23WG—Crimes Act 1914 (Cth)(opens in a new window).

More information

Legislation

Crimes Act 1914 (Cth)

  • Pt 1AA Div. 4A—determining a person's age
  • Pt. 1D—forensic procedures
  • Div. 2—authority and time limits for forensic procedures on suspects: summary of rules
  • s. 23WC—how forensic procedures may be authorised in different circumstances
  • s. 23WCA—time limits for carrying out forensic procedures
  • Div. 3—forensic procedures on suspect by consent
  • s. 23WJ—matters that suspect must be informed of before giving consent
  • s. 23WL—withdrawal of consent
  • s. 23WG—informed consent—Aboriginal persons and Torres Strait Islanders
  • s. 23WLA—time for carrying out forensic procedure—suspect not in custody
  • Div. 4—non-intimate forensic procedures on suspect by order of senior constable
  • Div. 5—forensic procedures on suspect by order of a magistrate
  • Div. 8A Commonwealth and State/Territory DNA database systems
  • s. 23YO—disclosure of information

See Crimes Act 1914 (Cth)(opens in a new window).

Updated