Crimes Act 1914

Part ID - Forensic procedures  

Division 6B - Carrying out of forensic procedures on volunteers and certain other persons  

SECTION 23XWR   Informed consent of volunteer or parent or guardian of volunteer  

(1)    

A volunteer, or parent or guardian of a volunteer, gives informed consent in accordance with this section if the volunteer, parent or guardian consents in the presence of an independent person (not being a constable) after a constable informs the volunteer, parent or guardian, in accordance with the regulations, of the following matters:

(a) the way in which the forensic procedure is to be carried out;

(b) that the volunteer is under no obligation to undergo the forensic procedure;

(c) that the forensic procedure may produce evidence that might be used in a court of law;

(d) to the extent that they are relevant, the matters specified in subsection (2);

(e) that the volunteer, parent or guardian may consult a legal practitioner of the volunteer ' s, parent ' s or guardian ' s choice before deciding whether or not to consent to the forensic procedure;

(f) that the volunteer, parent or guardian may at any time withdraw consent to:

(i) the volunteer undergoing the forensic procedure; or

(ii) retention of the forensic material taken; or

(iii) retention of information obtained from the analysis of that material.

(2)    
The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:

(a) that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the Commonwealth DNA database system;

(b) that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and

(ba) if the information is placed on the volunteers (limited purposes) index - the purpose for which the information is placed on the index and that the information may only be used for that purpose;

(c) if the information is placed on the volunteers (unlimited purposes) index - that the information may be used for the purposes of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under Division 8A ;

(d) that information placed on the Commonwealth DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;

(da) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:

(i) the name of the foreign law enforcement agency that has made the request;

(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;

(iii) that the forensic evidence may be used in proceedings in the foreign country;

(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;

(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;

(vi) the content of those undertakings;

(db) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:

(i) the name of the international tribunal for which the request was made;

(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;

(iii) that the forensic evidence may be used in proceedings in the international tribunal;

(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;

(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;

(vi) the content of those undertakings;

(e) any other matters prescribed by the regulations.