Part ID
-
Forensic procedures
History
Part ID (heading) substituted by No 41 of 2003, s 3 and Sch 3 item 40, effective 3 June 2003. For saving provision, see note under s 23C(7). The heading formerly read:
Part 1D
-
Forensic procedures
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
•
suspects in relation to indictable offences (Divisions
3
,
4
and
5
); and
•
offenders in relation to prescribed and serious offences (Division
6A
); and
•
volunteers (Division
6B
).
If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division
6
.
If a forensic procedure covered by this Part is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division
9A
).
This Part also:
•
contains offences in relation to the Commonwealth DNA database system and the National Criminal Investigation DNA Database (
NCIDD
) (Division
8A
); and
•
provides for the whole or a part of the Commonwealth DNA database system to be integrated with the whole or a part of one ore more State/Territory DNA database systems to form part of NCIDD (Division
8A
); and
•
provides for the exchange of information in the Commonwealth DNA database system or a State/Territory DNA database system and the protection of the information that is exchanged (Division
11
); and
•
provides for the destruction of forensic material (Division
8
).
History
Simplified outline amended by No 34 of 2018, s 3 and Sch 1 item 101, by substituting
"
or an international tribunal,
"
for
"
(as contemplated by the Mutual Assistance in Criminal Matters Act 1987)
"
, effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
.
Simplified outline amended by No 7 of 2012, s 3 and Sch 3 item 70, by inserting the para relating to Div 9A, effective 20 September 2012.
Simplified outline amended by No 130 of 2006, s 3 and Sch 1 item 1, by substituting all the words from and including
"
This Part also
"
, effective 5 November 2006. No 130 of 2006, s 3 and Sch 1 item 52 contains the following transitional provision:
Transitional
52
For the purposes of the application of Part ID of the
Crimes Act 1914
after 5 November 2006, a reference to the Commonwealth DNA database system is taken, in relation to a thing that happened before 5 November 2006, to include a reference to the DNA database system (within the meaning of that Act as in force immediately before 5 November 2006).
The words formerly read:
This Part also provides for:
•
the establishing of a DNA database system (Division
8A
); and
•
offences in relation to the DNA database system (Division
8A
); and
•
the protection of information stored in the DNA database system (Division
11
); and
•
the destruction of forensic material (Division
8A
).
Simplified Outline substituted by No 22 of 2001, s 3 and Sch 1 item 4, effective 6 October 2001. The Simplified Outline formerly read:
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on people who are suspects in relation to indictable offences.
In different circumstances, forensic procedures may be carried out on suspects:
•
with the informed consent of the suspect; or
•
by order of a senior constable; or
•
by order of a magistrate.
If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division
6
.
If a forensic procedure covered by this Part is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
If a forensic procedure authorised by this Part is not carried out as required by this Part (in particular Division
6
), evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
Division
11
provides for the taking of blood samples from people convicted of serious offences.
Division 9
-
General provisions relating to operation of this Part
SECTION 23YO
DISCLOSURE OF INFORMATION
(1)
A person commits an offence if:
(a)
the person has access to any information stored on the Commonwealth DNA database system or NCIDD or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and
(b)
the person
'
s conduct causes the disclosure of information other than as provided by this section; and
(c)
the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
History
S 23YO(1) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 75, by substituting
"
commits
"
for
"
is guilty of
"
, effective 10 March 2016.
S 23YO(1) amended by No 130 of 2006, s 3 and Sch 1 item 35, by substituting
"
Commonwealth DNA database system or NCIDD
"
for
"
DNA database system
"
in para (a), effective 5 November 2006. No 130 of 2006, s 3 and Sch 1 item 52 contains the following transitional provision:
Transitional
52
For the purposes of the application of Part ID of the
Crimes Act 1914
after 5 November 2006, a reference to the Commonwealth DNA database system is taken, in relation to a thing that happened before 5 November 2006, to include a reference to the DNA database system (within the meaning of that Act as in force immediately before 5 November 2006).
(1A)
Paragraph (1)(a) does not apply to access to information stored on NCIDD in the circumstances permitted by subsection
23YDACA(2)
.
History
S 23YO(1A) inserted by No 130 of 2006, s 3 and Sch 1 item 35A, effective 5 November 2006.
(2)
A person may only disclose information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:
(a)
the purposes of forensic comparison in the course of a criminal investigation by a constable or other person prescribed by the regulations;
(b)
the purposes of making the information available, in accordance with the regulations, to the person to whom the information relates;
(c)
the purposes of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;
(d)
the purposes of any arrangement mentioned in subsection
23YUD(1)
or
(1A)
entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;
(da)
the purposes of assisting a foreign country or international tribunal to decide whether to make a request;
(e)
the purposes of, and in accordance with, the
Mutual Assistance in Criminal Matters Act 1987
, the
International Criminal Court Act 2002
, the
International War Crimes Tribunals Act 1995
or the
Extradition Act 1988
;
(f)
the purpose of a coronial inquest or inquiry;
(g)
the purposes of an investigation by the Information Commissioner or the Ombudsman of the Commonwealth or of a participating jurisdiction.
History
S 23YO(2) amended by No 34 of 2018, s 3 and Sch 1 items 128 and 129, by substituting para (da) and inserting
"
, the
International Criminal Court Act 2002
, the
International War Crimes Tribunals Act 1995
"
in para (e), effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
. Para (da) formerly read:
(da)
the purposes of assisting a foreign country to decide whether to make a request under the
Mutual Assistance in Criminal Matters Act 1987
;
S 23YO(2) amended by No 24 of 2012, s 3 and Sch 1 item 66, by inserting para (da), effective 5 April 2012. No 24 of 2012, s 3 and Sch 1 item 75(7) contains the following application provision:
75 Application provision
…
(7)
The amendments made by items 59 and 66 do not affect by implication the interpretation of sections 23YDAE and
23YO
of the
Crimes Act 1914
at a time before the commencement of those items
[
ie 5 April 2012].
…
S 23YO(2) amended by No 51 of 2010, s 3 and Sch 5 item 14, by substituting
"
Information Commissioner
"
for
"
Privacy Commissioner
"
in para (g), effective 1 November 2010.
S 23YO(2) amended by No 130 of 2006, s 3 and Sch 1 items 36 to 39, by substituting
"
stored on the Commonwealth DNA database system or NCIDD
"
for
"
stored on the DNA database system
"
, substituting
"
Commonwealth DNA database system, NCIDD or a State/Territory DNA database system
"
for
"
DNA database sytem
"
in para (c), inserting
"
mentioned in subsection 23YUD(1) or (1A)
"
after
"
arrangement
"
in para (d) and substituting
"
Commonwealth DNA database system or a State/Territory DNA database system
"
for
"
DNA database system
"
in para (d), effective 5 November 2006. No 130 of 2006, s 3 and Sch 1 item 52 contains the following transitional provision:
Transitional
52
For the purposes of the application of Part ID of the
Crimes Act 1914
after 5 November 2006, a reference to the Commonwealth DNA database system is taken, in relation to a thing that happened before 5 November 2006, to include a reference to the DNA database system (within the meaning of that Act as in force immediately before 5 November 2006).
(3)
A person may only disclose information revealed by the carrying out of a forensic procedure as follows:
(a)
if the person is the suspect, offender or volunteer to whom the information relates;
(b)
if the information is already publicly available;
(c)
in accordance with any other provision of this Part;
(d)
in accordance with the
Mutual Assistance in Criminal Matters Act 1987
, the
International Criminal Court Act 2002
, the
International War Crimes Tribunals Act 1995
or the
Extradition Act 1988
;
(e)
for the purposes of the investigation of any offence or offences generally;
(f)
for the purpose of a decision whether to institute proceedings for any offence;
(g)
for the purpose of proceedings for any offence;
(h)
for the purpose of a coronial inquest or inquiry;
(i)
for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;
(ia)
for the purpose of dealing with or investigating, under Part V or the
Australian Federal Police Act 1979
, an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;
(j)
for the purposes of the suspect
'
s, offender
'
s or volunteer
'
s medical treatment;
(k)
for the purpose of the medical treatment of the victim of an offence that there are reasonable grounds to believe was committed by the suspect;
(l)
if the suspect, offender or volunteer consents in writing to the disclosure.
History
S 23YO(3) amended by No 34 of 2018, s 3 and Sch 1 item 130, by inserting
"
, the
International Criminal Court Act 2002
, the
International War Crimes Tribunals Act 1995
"
in para (d), effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
.
S 23YO(3) amended by No 84 of 2006, s 3 and Sch 3 item 35, by inserting para (ia), effective 30 December 2006.
CCH Note:
S23YO(3)(ia), as inserted by No 84 of 2006, s 3 and Sch 3 item 35, reads
"
... under Part V or the
Australian Federal Police Act 1979
...
"
. Presumably, this text should read
"
... under Part V of the
Australian Federal Police Act 1979
...
"
.
(4)
This section does not apply to information that cannot be used to discover the identity of any person.
History
S 23YO inserted by No 22 of 2001, s 3 and Sch 1 item 77, effective 6 October 2001.
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