Crimes Act 1914

Part IAA - Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)  

Division 4 - Arrest and related matters  

SECTION 3ZJ   TAKING FINGERPRINTS, RECORDINGS, SAMPLES OF HANDWRITING OR PHOTOGRAPHS  

3ZJ(1)    
In this section and in sections 3ZK and 3ZL :

identification material
, in relation to a person, means prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V .

3ZJ(2)    
A constable must not:

(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or

(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.

3ZJ(3)    
If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:

(a) the person consents in writing; or

(b) the constable believes on reasonable grounds that it is necessary to do so to:

(i) establish who the person is; or

(ii) identify the person as the person who committed the offence; or

(iii) provide evidence of, or relating to, the offence; or

(ba) both of the following apply:

(i) the identification material taken, or caused to be taken, is fingerprints or photographs (including video recordings) of the person;

(ii) the offence is punishable by imprisonment for a period of 12 months or more; or

(c) the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.

3ZJ(4)    
A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

3ZJ(5)    
Subject to subsection (9), a constable must not take identification material from a person who is under 10.

3ZJ(6)    
Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:

(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and

(b) has not been arrested and charged;

unless a magistrate orders that the material be taken.

3ZJ(6A)    

A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:

(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and

(b) has not been arrested and charged;

except in accordance with Part ID .

3ZJ(7)    
In deciding whether to make such an order, the magistrate must have regard to:

(a) the seriousness of the offence; and

(b) the age or any disability of the person; and

(c) such other matters as the magistrate thinks fit.

3ZJ(8)    
The taking of identification material from a person who:

(a) is under 18; or

(b) is incapable of managing his or her affairs;

must be done in the presence of:

(c) a parent or guardian of the person; or

(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.

3ZJ(9)    
Despite this section, identification material may be taken from a person who:

(a) is not a suspect; and

(b) is under 10 or is incapable of managing his or her affairs;

if a magistrate orders that the material be taken.

3ZJ(10)    
Despite this section, identification material may be taken from a person who:

(a) is not a suspect; and

(b) is at least 10 but under 18; and

(c) is capable of managing his or her affairs;

if one of the following paragraphs applies:

(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;

(e) if:

(i) one of those persons agrees in writing to the taking of the material but the other does not; and

(ii) a magistrate orders that the material be taken.

3ZJ(11)    
In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).

3ZJ(12)    
Despite this section, identification material may be taken from a person who:

(a) is at least 18; and

(b) is capable of managing his or her affairs; and

(c) is not a suspect;

if the person consents in writing.