Part ID—Forensic procedures
Division 4—Non‑intimate forensic procedures on suspect by order of
senior constable
23WM
Non‑intimate forensic procedure may be carried out by order of senior
constable
(1) A person is authorised to carry out a non‑intimate
forensic procedure on a suspect by order of a senior constable under section 23WN.
The person is authorised to carry out the procedure in accordance with Division 6
and not otherwise.
(2) This Division does not authorise the
carrying out of a forensic procedure on a suspect who is:
(a) a child; or
(b) an incapable person.
(3) This Division does not authorise keeping
a suspect in custody, in order to carry out a forensic procedure, after the
expiration of the investigation period provided for by Part IC.
Note: If it is necessary to keep a suspect in
custody after the expiration of the Part IC investigation period in order to
carry out a forensic procedure, an order of a magistrate under Division 5
will have to be obtained to authorise this.
(4) Nothing in this Part or Part IC prevents
the carrying out of a forensic procedure, in accordance with a constable’s
order under section 23WN, during the investigation period provided for by
Part IC. However, neither carrying out the forensic procedure, nor any delays
associated with carrying out the forensic procedure, operate to extend the
investigation period provided for by Part IC.
Note: By contrast, the carrying out of a forensic
procedure in accordance with a magistrate’s order under Division 5, and
associated delays, may delay the expiration of the investigation period
provided for by Part IC.
23WN
Circumstances in which senior constable may order non‑intimate forensic
procedures
A senior
constable may order the carrying out of a non‑intimate forensic procedure
on a suspect who is in custody if:
(a) the suspect has been asked under
Division 3 to consent to the carrying out of the forensic procedure; and
(b) the suspect has not consented; and
(c) the senior constable is satisfied
as required by section 23WO.
23WO
Matters to be considered by senior constable before ordering forensic procedure
(1) The senior constable must be satisfied on
the balance of probabilities that:
(a) the suspect is in the lawful
custody of a constable; and
(b) there are reasonable grounds to
believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to
believe that the forensic procedure is likely to produce evidence tending to
confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic
procedure without consent is justified in all the circumstances.
(2) In determining whether the carrying out
of the forensic procedure without consent is justified in all the
circumstances, the senior constable must balance the public interest in
obtaining evidence tending to confirm or disprove that the suspect committed
the offence concerned against the public interest in upholding the physical
integrity of the suspect.
(3) In balancing those interests, the senior
constable must have regard to the following matters:
(a) the seriousness of the
circumstances surrounding the commission of the relevant offence and the
gravity of the relevant offence;
(b) the degree of the suspect’s
alleged participation in the commission of the relevant offence;
(c) the age, physical health and
mental health of the suspect, to the extent that they are known to the senior
constable or can reasonably be discovered by the senior constable (by asking
the suspect or otherwise);
(e) whether there is a less intrusive
but reasonably practicable way of obtaining evidence tending to confirm or
disprove that the suspect committed the relevant offence;
(f) if
the suspect gives any reasons for refusing to consent—the reasons;
(g) any other matter considered
relevant to balancing those interests.
(4) Without limiting the matters that the
senior constable may take into account in considering, for the purposes of
paragraph (3)(e), the intrusiveness of the forensic procedure, the senior
constable must (where appropriate) take into account the religious beliefs of
the suspect.
23WP
Record of senior constable’s order
(1) The senior constable must, at the time
of, or as soon as practicable after, make an order under section 23WN,
make a record of:
(a) the order made; and
(b) the date and time when the order
was made; and
(c) the reasons for making it;
and must sign the record.
(2) The senior constable must ensure that a
copy of the record is made available to the suspect as soon as practicable
after the record is made.
Division 5—Forensic procedures on suspect by order of a magistrate
Subdivision A—General
23WQ
Forensic procedure may be carried out by order of magistrate
A person is authorised to carry out a
forensic procedure on a suspect by order of a magistrate under section 23WS
or 23XA. The person is authorised to carry out the procedure in accordance with
Division 6 and not otherwise.
23WR
Circumstances in which magistrate may order forensic procedure
A magistrate may, under section 23WS
or 23XA, order the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not in custody and
has not consented to the forensic procedure; or
(b) the suspect is in custody and has not
consented to the forensic procedure; or
(c) under section 23WE, the
suspect cannot consent to the forensic procedure.
Subdivision B—Final orders
23WS
Final order for carrying out of forensic procedure
A magistrate may order the carrying out
of a forensic procedure on a suspect if:
(a) section 23WR applies; and
(b) the magistrate is satisfied as
required by section 23WT.
23WT
Matters to be considered by magistrate before ordering forensic procedure
(1) The
magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure
is proposed to be carried out is a suspect; and
(b) on the evidence before him or her,
there are reasonable grounds to believe that the suspect committed a relevant
offence; and
(c) there are reasonable grounds to
believe that the forensic procedure is likely to produce evidence tending to
confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic
procedure is justified in all the circumstances.
(2) In determining whether the carrying out
of the forensic procedure is justified in all the circumstances, the magistrate
must balance the public interest in obtaining evidence tending to confirm or
disprove that the suspect committed the offence concerned against the public
interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the
magistrate must have regard to the following matters:
(a) the seriousness of the
circumstances surrounding the commission of the relevant offence and the
gravity of the relevant offence;
(b) the degree of the suspect’s
alleged participation in the commission of the relevant offence;
(c) the age, physical health and
mental health of the suspect, to the extent that they are known to the
magistrate or can reasonably be discovered by the magistrate (by asking the
suspect or otherwise);
(e) if the suspect is a child or an
incapable person—the welfare of the suspect;
(f) whether there is a less intrusive
but reasonably practicable way of obtaining evidence tending to confirm or
disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons
for refusing to consent—the reasons;
(h) if
the suspect is in custody:
(i) the
period for which the suspect has already been detained; and
(ii) the
reasons for any delay in proposing the carrying out of the forensic procedure;
(i) any other matter considered
relevant to balancing those interests.
(4) Without limiting the matters that the
magistrate may take into account in considering, for the purposes of
paragraph (3)(f), the intrusiveness of the forensic procedure, the
magistrate must (where appropriate) take into account the religious beliefs of
the suspect.
23WU
Application for order
(1) An authorised applicant (but no other
person) may apply to a magistrate for an order under section 23WS
authorising him or her to arrange the carrying out of a forensic procedure on a
suspect.
(2) An application for an order must:
(a) be made in writing; and
(b) be supported by evidence on oath
or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a),
(b), (c) and (d); and
(c) specify the type of forensic
procedure sought to be carried out; and
(d) be made in the presence of the
suspect (subject to any contrary order made by the magistrate).
23WV
Securing the presence of suspect at hearing—suspect in custody
(1) If the suspect is in the custody of
another constable or is otherwise detained under a law of the Commonwealth, a
State or a Territory (original custody), the magistrate may, on
the application of a constable, issue a warrant directing the person holding
the suspect in original custody to deliver the suspect into the custody of the
constable (temporary custody) for the hearing of an application
for an order under this Division.
(2) The constable given temporary custody
must return the suspect to the place of original custody:
(a) if the application for the order
is refused—without delay; or
(b) if the order is made—without delay
at the end of the period for which the suspect may be detained in custody under
section 23XGD.
23WW
Securing the presence of suspect at hearing—suspect not in custody
(1) If the suspect is not in custody, the
magistrate may, on the application of a constable:
(a) issue a summons for the appearance
of the suspect at the hearing of the application; or
(b) issue a warrant for the arrest of
the suspect for the purpose of bringing the suspect before the magistrate for
the hearing of the application.
(2) An application for a summons under subsection (1)
must be:
(a) made by information on oath; and
(b) accompanied by an affidavit
dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a summons only
if satisfied:
(a) that the issue of the summons is
necessary to ensure the appearance of the suspect at the hearing of the
application; or
(b) that the issue of the summons is
otherwise justified.
(4) An application for a warrant under subsection (1)
must be:
(a) made by information on oath; and
(b) accompanied by an affidavit
dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5) The
magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to
ensure the appearance of the suspect at the hearing of the application, and
that the issue of a summons would not ensure that appearance; or
(b) that the suspect might destroy
evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is
otherwise justified.
23WX
Procedure at hearing of application for order
(1) An order may only be made in the presence
of the suspect concerned, subject to any contrary order made by the magistrate.
(2) A suspect who is:
(a) a child; or
(b) an incapable person;
must be represented by an interview friend and may also be
represented by a legal practitioner.
(3) If the applicant believes on reasonable
grounds that the suspect is an Aboriginal person or a Torres Strait Islander
not covered by subsection (2), the suspect must be represented by an
interview friend and may also be represented by a legal practitioner.
(4) Subsection (3) does not apply if the
applicant believes on reasonable grounds that, having regard to the suspect’s
level of education and understanding, the suspect is not at a disadvantage in
relation to the hearing by comparison with members of the Australian community
generally.
(5) Any other suspect (including a suspect
covered by subsection (4)) may be represented by a legal practitioner.
(6) The suspect or his or her representative:
(a) may call or cross‑examine
the applicant for the order; and
(b) may, with the leave of the
magistrate, call or cross‑examine any other witnesses; and
(c) may address the magistrate.
(6A) A magistrate must not give leave under paragraph (6)(b)
unless the magistrate is of the opinion that there are substantial reasons why,
in the interests of justice, the witness should be called or cross‑examined.
(7) In spite of subsection (2) or (3),
the suspect’s interview friend may be excluded from the hearing if the
interview friend unreasonably interferes with or obstructs the hearing of the
application.
23WY
Making of order
(1) If a magistrate makes an order for the
carrying out of a forensic procedure, the magistrate must:
(a) give reasons for making the order;
and
(b) ensure that a written record of
the order is kept; and
(c) order the suspect to attend for
the carrying out of the forensic procedure; and
(d) inform the suspect that reasonable
force may be used to ensure that he or she complies with the order for the
carrying out of the forensic procedure.
(2) The magistrate may give directions as to
the time, place and manner in which the procedure is to be carried out.
Subdivision C—Interim orders
23XA
Interim order for carrying out of a forensic procedure
(1) A magistrate may make an interim order
authorising the carrying out of a forensic procedure on a suspect that must be
carried out without delay if:
(a) section 23WR applies; and
(b) the magistrate is satisfied that
the probative value of evidence obtained as a result of the forensic procedure
concerned is likely to be lost or destroyed if there is delay in carrying out
the procedure; and
(c) the magistrate is satisfied that
there is sufficient evidence to indicate that a magistrate is reasonably likely
to be satisfied of the existence of the matters referred to in subsection
23WT(1) when the application is finally determined.
(2) An interim order operates as provided by
this Subdivision until a magistrate, at a hearing held under Subdivision B,
confirms the interim order or disallows the interim order.
Note: Subsection 23XD(2) requires that an interim
order specify the intended date, time and place of the later hearing.
(3) Subdivision B applies in relation to an
order confirming the interim order in the same way it applies in relation to an
order under section 23WS, and an order confirming the interim order is
taken to be an order under section 23WS.
23XB
Application for interim order
(1) An authorised applicant may, without
bringing a suspect before a magistrate and without obtaining an order under
section 23WS, make an application seeking an interim order authorising the
carrying out of a forensic procedure on a suspect that must be carried out
without delay.
(2) An application for an interim order must:
(a) be supported by evidence on oath
or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a),
(b) and (c); and
(b) specify the type of forensic
procedure sought to be carried out.
(3) An application for an interim order may
be made in person or, if that is not practicable, by telephone, radio, telex,
facsimile or other means of transmission.
(4) The suspect must be in the presence of
the authorised applicant when the application is made.
(5) If the suspect is:
(a) a child; or
(b) an
incapable person;
an interview friend or legal representative of the suspect
must also be in the presence of the authorised applicant.
(6) If the applicant believes on reasonable
grounds that the suspect is an Aboriginal person or a Torres Strait Islander
not covered by subsection (5), an interview friend or legal representative
of the suspect must also be in the presence of the authorised applicant.
(7) Subsection (6) does not apply if the
applicant believes on reasonable grounds that, having regard to the suspect’s
level of education and understanding, the suspect is not at a disadvantage in
relation to the application by comparison with members of the Australian
community generally.
(8) If the suspect is not covered by subsection (5)
or (6), the suspect’s legal representative (if any) must also be in the
presence of the authorised applicant.
(9) In spite of subsection (5) or (6),
the suspect’s interview friend may be excluded from the presence of the
authorised applicant if the interview friend unreasonably interferes with or
obstructs the making of the application.
23XC
Procedure at hearing of application for interim order
(1) If the application is made in person, or
by telephone or radio or other form of oral communication, the magistrate must
ensure that:
(a) the suspect; and
(b) the suspect’s legal
representative, if any; and
(c) the suspect’s interview friend, if
any;
are given an opportunity to speak to the magistrate.
(2) If the application is made by telex,
facsimile or other form of written communication, the magistrate must ensure
that:
(a) the suspect; and
(b) the suspect’s legal
representative, if any; and
(c) the suspect’s interview friend, if
any;
are given an opportunity to make a written submission to
accompany the application, or to speak to the magistrate by telephone, radio or
other form of oral communication.
23XD
Making of interim order
(1) A magistrate who makes an interim order
must inform the applicant for the order personally, or by telephone, radio,
telex, facsimile or other means of transmission:
(a) that the order has been made; and
(b) of the terms of the order,
including the matters mentioned in subsection (2); and
(c) of any orders made or directions
given under subsection (3) in relation to the order.
(2) An interim order must specify the date,
time and place at which a further hearing on the application will take place
and the application will be finally determined.
(3) A magistrate may make such orders and
give such directions in relation to an interim order as the magistrate may make
or give in relation to an order under section 23WS.
23XE
Records of application and interim order
(1) The applicant for an interim order must,
at the time of, or as soon as practicable after, applying for the interim
order, make a record (the applicant’s record) of:
(a) the application; and
(b) the grounds for seeking the order;
and
(c) the order made; and
(d) the date and time when the order
was made; and
(e) the magistrate’s name;
and sign the record.
(2) The applicant must send a copy of the
applicant’s record to the magistrate as soon as practicable after it is made.
(3) The magistrate must, at the time of, or
as soon as practicable after, making an interim order, make a record (the magistrate’s
record) of:
(a) the application; and
(b) the grounds for seeking the order;
and
(c) the order made; and
(d) the date and time when the order
was made; and
(e) the reasons for making it;
and sign the record.
(4) The magistrate must send a copy of the
magistrate’s record to the applicant as soon as practicable after the record is
made.
(5) The applicant must ensure that a copy of
the magistrate’s record and a copy of the applicant’s record are made available
to the suspect as soon as practicable after the applicant receives the
magistrate’s record.
(6) If the applicant’s record does not, in
all material respects, accord with the magistrate’s record, the order is taken
to have had no effect.
23XF
Suspect may be prevented from destroying or contaminating evidence
(1) A constable may, while waiting for the
application seeking an interim order to be determined, use reasonable force to
prevent the suspect destroying or contaminating any evidence that might be
obtained by carrying out the forensic procedure if the order is made.
(2) Nothing in this section authorises any
person to carry out a forensic procedure before an interim order is made.
23XG
Results of forensic procedure carried out under interim order
(1) A sample taken under an interim order
must not be analysed unless:
(a) the sample is likely to perish
before a final order is made; or
(b) a final order is made.
(2) A person who conducts an analysis in the
circumstances set out in paragraph (1)(a) must not intentionally disclose
the results of the analysis to any person:
(a) during the period before a final
order is made; or
(b) if the interim order is
disallowed.
Penalty for a contravention of subsection (2): Imprisonment
for 12 months.
Subdivision D—Time limits for forensic procedures ordered by magistrates
23XGA
Application
This Subdivision applies where a
magistrate orders the carrying out of a forensic procedure on a suspect under
this Part.
23XGB
Time for carrying out forensic procedure—suspect not in custody
(1) If a suspect who is not in custody
presents himself or herself to the investigating constable to undergo the
procedure ordered by the magistrate, the procedure must be carried out as
quickly as reasonably possible but in any case within the following period:
(a) if the suspect is a child or an
incapable person, or the investigating constable believes on reasonable grounds
that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours
after the suspect so presents himself or herself;
(b) in any other case—4 hours after
the suspect so presents himself or herself.
(2) In working out any period of time for the
purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is
reasonably required to convey the suspect from the place where the suspect
presents himself or herself to the investigating constable to the nearest
premises where facilities for carrying out the procedure in accordance with
this Part are available to the investigating constable;
(b) any time during which carrying out
the procedure is suspended or delayed to allow the suspect, or someone else on
the suspect’s behalf, to communicate with a legal practitioner, friend,
relative, parent, guardian, interpreter, medical practitioner, dentist or other
person as provided by this Part;
(c) any time during which carrying out
the procedure is suspended or delayed to allow such a legal practitioner,
friend, relative, parent, guardian, interpreter, medical practitioner, dentist
or other person to arrive at the place where the procedure is to be carried
out;
(d) any time during which carrying out
the procedure is suspended or delayed to allow the suspect to receive medical
attention;
(e) any time during which carrying out
the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which
carrying out the procedure is suspended or delayed to allow the suspect to rest
or recuperate;
(g) any time during which carrying out
the procedure is suspended or delayed at the request of the suspect.
23XGC
Arrest of suspect not in custody
(1) If the suspect is not in custody, the
magistrate may, on the application of a constable, issue a warrant for the
arrest of the suspect for the purpose of carrying out the forensic procedure.
(2) An application for a warrant must be:
(a) made by information on oath; and
(b) accompanied by an affidavit
dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a warrant only
if satisfied:
(a) that the arrest is necessary to
ensure that the forensic procedure can be carried out; or
(b) that the issue of the warrant is
otherwise justified.
(4) A magistrate must not issue a warrant for
the arrest of a suspect for the purpose of carrying out a forensic procedure if
a warrant has previously been issued (by any magistrate) for the arrest of the
suspect for the purpose of carrying out that forensic procedure.
23XGD
Time for carrying out forensic procedure—suspect in custody
(1) If the suspect is in custody (whether or
not as the result of the issue of a warrant under section 23XGC), he or
she may be detained in custody for such period (the detention period)
as is reasonably necessary to carry out the forensic procedure but in any case
for no longer than a period starting when:
(a) the magistrate orders the carrying
out of the procedure; or
(b) the suspect is arrested pursuant
to a warrant under section 23XGC;
whichever is later, and ending:
(c) if the suspect is a child or an
incapable person, or the investigating constable believes on reasonable grounds
that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours
later; or
(d) in any other case—4 hours later.
(2) In working out any period of time for the
purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is
reasonably required to convey the suspect from the place where the suspect is
when the detention period starts to the nearest premises where facilities for
carrying out the procedure in accordance with this Part are available to the
investigating constable;
(b) any time during which carrying out
the procedure is suspended or delayed to allow the suspect, or someone else on
the suspect’s behalf, to communicate with a legal practitioner, friend,
relative, parent, guardian, interpreter, medical practitioner, dentist or other
person as provided by this Part;
(c) any time during which carrying out
the procedure is suspended or delayed to allow such a legal practitioner, friend,
relative, parent, guardian, interpreter, medical practitioner, dentist or other
person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out
the procedure is suspended or delayed to allow the suspect to receive medical
attention;
(e) any time during which carrying out
the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which
carrying out the procedure is suspended or delayed to allow the suspect to rest
or recuperate;
(g) any time during which the suspect
is being questioned under Part IC;
(h) any time that is to be disregarded
under subsection 23C(7) or 23CA(8).
Subdivision E—Reports of proceedings under Division
23XH
Restrictions on publication
A person must not intentionally, in any
report of a proceeding under this Division, publish:
(a) the name of the suspect; or
(b) any information likely to enable
the identification of the suspect;
unless the suspect has been charged with a relevant offence
or the magistrate, by order, has authorised such publication.
Penalty: Imprisonment for 12 months.
Division 6—Carrying out forensic procedures on suspects
Subdivision A—General provisions
23XI
General rules for carrying out forensic procedures
A forensic procedure:
(a) must be carried out in
circumstances affording reasonable privacy to the suspect; and
(b) except as permitted (expressly or
impliedly) by other provisions of this Part, must not be carried out in the
presence or view of a person who is of the opposite sex to the suspect; and
(c) must not be carried out in the
presence or view of a person whose presence is not necessary for the purposes
of the forensic procedure or required or permitted by another provision of this
Part; and
(d) must not involve the removal of
more clothing than is necessary for the carrying out of the procedure; and
(e) must not involve more visual
inspection than is necessary for the carrying out of the procedure.
23XIA
No questioning during forensic procedure
A forensic procedure must not be carried
out while the suspect is being questioned as defined in subsection 23B(6). If
questioning has not been completed before the forensic procedure is to be
carried out, it must be suspended while the forensic procedure is carried out.
23XIB
Suspect must be cautioned before forensic procedure starts
Before anyone starts to carry out a
forensic procedure on a suspect, a constable must caution the suspect that he
or she does not have to say anything while the procedure is carried out but
that anything the person does say may be used in evidence.
23XJ
Use of force in carrying out forensic procedures
(1) Subject to subsection (2) and
section 23XK, a person authorised to carry out a forensic procedure on a
person, or a constable, may use reasonable force:
(a) to enable a forensic procedure to
be carried out; or
(b) to prevent loss, destruction or
contamination of any sample.
(2) All forensic procedures are to be carried
out in a manner consistent with appropriate medical or other relevant
professional standards.
23XK
Forensic procedures not to be carried out in cruel, inhuman or degrading manner
For the purpose of this Part, the
carrying out of a forensic procedure is not of itself taken to be cruel,
inhuman or degrading. However, nothing in this Part authorises the carrying out
of a forensic procedure in a cruel, inhuman or degrading manner.
23XL
Taking of hair samples
A person is authorised to take a sample
of hair of a suspect by removing the root of the hair only if:
(a) the person takes only so much hair
as the person believes is necessary for analysis of the sample, or other
examination of the hair, to be carried out for the purpose of investigating the
offence; and
(b) each strand of hair is taken
individually using the least painful technique known and available to the
person.
Subdivision B—Persons involved in forensic procedures
23XM
Persons who may carry out forensic procedures
(1) The table following subsection (4)
shows, for each forensic procedure, the persons who may carry out the procedure
under this Part. A person not specified in the second column of the table is
not authorised to carry out a forensic procedure under this Part except as
mentioned in section 23XO.
(2) The third
column of the table following subsection (4) shows, for each forensic
procedure, whether the suspect is entitled to request that a medical
practitioner or dentist of the suspect’s choice is present while the forensic
procedure is carried out.
Note: Section 23XP makes detailed provision for
the presence of a medical practitioner or dentist of the suspect’s choice while
a forensic procedure is carried out.
(3) A person is authorised to carry out a
particular forensic procedure if he or she is an appropriately qualified person
in relation to the procedure even if the person also satisfies another
description specified in the following table that is not specified in relation
to the particular forensic procedure.
Example: A constable who is an appropriately qualified
person to take samples of blood may take such samples even though the table
does not expressly list constables as persons who may take samples of blood.
(4) This section does not prevent a suspect
from taking a sample of saliva, or a sample by buccal swab, from himself or
herself under the supervision of an appropriately qualified person.
|
Who may carry out forensic procedures
|
|
|
Forensic procedure
|
Persons who may carry out forensic procedure
|
Is suspect entitled to request presence of medical
practitioner or dentist of suspect’s choice?
|
|
1
|
external examination of the genital or anal area, the
buttocks or, in the case of a female, the breasts
|
medical practitioner
nurse
appropriately qualified person
|
yes (medical practitioner)
|
|
2
|
the taking of a sample of blood
|
medical practitioner
nurse
appropriately qualified person
|
yes (medical practitioner)
|
|
3
|
the taking of a sample of saliva, or a sample by buccal
swab
|
medical practitioner
dentist
dental technician
nurse
appropriately qualified person
|
yes (dentist or medical practitioner)
|
|
4
|
the taking of a sample of pubic hair
|
medical practitioner
nurse
appropriately qualified person
|
yes (medical practitioner)
|
|
5
|
the taking of a sample by swab or washing from the
external genital or anal area, the buttocks or, in the case of a female, the
breasts
|
medical practitioner
nurse
appropriately qualified person
|
yes (medical practitioner)
|
|
6
|
the taking of a sample by vacuum suction, scraping or
lifting by tape from the external genital or anal area, the buttocks or, in
the case of a female, the breasts
|
medical practitioner
nurse
appropriately qualified person
|
yes (medical practitioner)
|
|
7
|
the taking of a dental impression
|
medical practitioner
dentist
dental technician
|
yes (dentist or medical practitioner)
|
|
8
|
the taking of a photograph or a video recording of, or an
impression or cast of a wound from, the genital or anal area, the buttocks
or, in the case of a female, the breasts
|
appropriately qualified person
|
yes (medical practitioner)
|
|
9
|
external examination of a part of the body other than the
genital or anal area, the buttocks or, in the case of a female, the breasts,
that requires touching of the body or removal of clothing
|
medical practitioner
nurse
appropriately qualified person
|
no
|
|
10
|
the taking of a sample of hair other than pubic hair
|
medical practitioner
nurse
constable
appropriately qualified person
|
no
|
|
11
|
the taking of a sample from a nail or from under a nail
|
medical practitioner
nurse
constable
appropriately qualified person
|
no
|
|
12
|
the taking of a sample by swab or washing from any
external part of the body other than the genital or anal area, the buttocks
or, in the case of a female, the breasts
|
medical practitioner
nurse
appropriately qualified person
|
no
|
|
13
|
the taking of a sample by vacuum suction, scraping or
lifting by tape from any external part of the body other than the genital or
anal area, the buttocks or, in the case of a female, the breasts
|
medical practitioner
nurse
appropriately qualified person
|
no
|
|
14
|
the taking of a hand print, finger print, foot print or toe
print
|
appropriately qualified person
|
no
|
|
15
|
the taking of a photograph or a video recording of, or an
impression or cast of a wound from, an external part of the body other than
the genital or anal area, the buttocks or, in the case of a female, the breasts
|
appropriately qualified person
|
no
|
Note: Appropriately qualified (as used
in the expression “appropriately qualified person”) is defined in section 23WA.
Subdivision C—Further provisions about who may carry out forensic
procedures
23XN
Certain forensic procedures generally to be carried out by person of same sex
as suspect
(1) If practicable, an intimate forensic
procedure (other than the taking of a sample of blood, a sample of saliva, a
buccal swab or a dental impression) is to be carried out:
(a) if the suspect is an adult—by a
person of the same sex as the suspect; or
(b) if the suspect is a child—by a
person of the sex chosen by the suspect or, if the suspect does not wish to
make such a choice, by a person of the same sex as the suspect.
(2) If
practicable, a non‑intimate forensic procedure for which the suspect is
required to remove clothing other than his or her overcoat, coat, jacket,
gloves, socks, shoes and hat is to be carried out:
(a) if the suspect is an adult—by a
person of the same sex as the suspect; or
(b) if the suspect is a child—by a
person of the sex chosen by the suspect or, if the suspect does not wish to
make such a choice, by a person of the same sex as the suspect.
(3) If practicable, a person asked under
section 23XO to help carry out a forensic procedure covered by subsection (1)
or (2):
(a) is to be:
(i) if the suspect is an
adult—a person of the same sex as the suspect; or
(ii) if the suspect is a
child—a person of the sex chosen by the suspect or, if the suspect does not
wish to make such a choice, by a person of the same sex as the suspect; and
(b) is to be a person who is not
inappropriate to help carry out the forensic procedure.
23XO
Person may get help to carry out forensic procedures
(1) A person who is authorised to carry out a
forensic procedure under the table in section 23XM is authorised to ask
another person to help him or her to carry out the procedure, and the other
person is authorised to give that help.
(2) A person who is asked to help carry out a
forensic procedure need not be a person mentioned in the table in section 23XM.
(3) A person who is asked to help carry out a
forensic procedure may use reasonable force to enable the forensic procedure to
be carried out.
Subdivision D—Presence of other people while forensic procedure is carried
out
23XP
Medical practitioner or dentist of suspect’s choice may be present for intimate
forensic procedures
(1) A suspect
is entitled to request a medical practitioner or dentist (the expert)
of his or her choice as shown in the table in section 23XM to be present
while a forensic procedure (other than a non‑intimate forensic procedure)
is carried out.
Note: Section 23YE provides that the request
may be made by the suspect’s legal representative or interview friend.
(2) The expert chosen is to be present at the
forensic procedure unless he or she:
(a) is unable, or does not wish, to
attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time
in which the person responsible for the effective carrying out of the forensic
procedure considers the forensic procedure should be carried out if it is to be
effective in affording evidence of the relevant offence.
23XQ
Presence of interview friend or legal representative—children and incapable
persons
(1) This section applies if the suspect is:
(a) a child; or
(b) an incapable person.
(2) Either an interview friend or a legal
representative (if he or she is not the interview friend) of the suspect must
be present while the forensic procedure is carried out. Both an interview
friend and a legal representative may be present.
(3) An interview friend (other than a legal
representative) of the suspect may be excluded from the place where the
forensic procedure is being carried out if the interview friend unreasonably
interferes with or obstructs the carrying out of the procedure.
23XR
Presence of interview friend or legal representative—Aboriginal persons and Torres
Strait Islanders
(1) This section applies if the investigating
constable believes on reasonable grounds that the suspect is an Aboriginal
person or a Torres Strait Islander not covered by section 23XQ.
(2) Either an interview friend or a legal
representative (if he or she is not the interview friend) of the suspect must
be present while the forensic procedure is carried out. Both an interview
friend and a legal representative may be present.
(3) Subsection (2) does not apply if:
(a) the investigating constable
believes on reasonable grounds that, having regard to the suspect’s level of
education and understanding, the suspect is not at a disadvantage in respect of
the carrying out of the forensic procedure by comparison with members of the
Australian community generally; or
(b) the suspect expressly and
voluntarily waives his or her right to have an interview friend present.
Note: Section 23YK relates to proving a waiver
under subsection (3).
(4) An interview friend (other than a legal
representative) of the suspect may be excluded from the place where the
forensic procedure is being carried out if the interview friend unreasonably
interferes with or obstructs the carrying out of the procedure.
23XS
Presence of constables
(1) The number of constables that may be
present during the carrying out of a forensic procedure must not exceed that
which is reasonably necessary to ensure that the procedure is carried out
effectively and in accordance with this Part.
(2) Where the presence of a constable (other
than a constable who is carrying out or helping to carry out the procedure) is
reasonably necessary to ensure that a forensic procedure is carried out
effectively and in accordance with this Part, the constable is:
(a) if the suspect is a child—to be of
the same sex as the suspect; or
(b) in any other case—to be of the
same sex as the suspect unless it is not practicable for such a constable to
attend within a reasonable time.
Note: Section 23XN provides that, if
practicable, most forensic procedures are to be carried out by persons of the
same sex as the suspect.
(3) This section does not apply to the
following forensic procedures:
(a) the taking of hand prints, finger
prints, foot prints or toe prints;
(b) any non‑intimate forensic
procedure that may be carried out without requiring the suspect to remove any
clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and
hat.
23XSA
Presence of prison officers
If:
(a) a particular suspect is being
detained in prison; and
(b) a forensic procedure is to be
carried out on the suspect (whether or not the forensic procedure is to be
carried out in prison);
one or more prison officers may be present while the
forensic procedure is carried out.
Subdivision E—Recording of forensic procedure
23XT
Recording of forensic procedure
(1) The carrying out of a forensic procedure
(other than the taking of a hand print, finger print, foot print or toe print)
must be video recorded unless:
(a) the suspect objects to the video
recording; or
(b) the video recording is not
practicable.
(2) Before the forensic procedure is carried
out, the suspect must be informed:
(a) of the reasons for video recording
the carrying out of the forensic procedure, including the protection that the
video recording provides for the suspect; and
(b) that the suspect may object to the
video recording.
(3) In spite of section 23YE, an
interview friend of an Aboriginal person or a Torres Strait Islander not
covered by section 23XQ has no right to object to the video recording of
the forensic procedure.
Note: Section 23YE gives interview friends and legal
representatives general powers to act on behalf of suspects. Section 23XQ
applies to children and incapable persons, including children or incapable
persons who are Aboriginal persons or Torres Strait Islanders, but does not
apply to other Aboriginal persons or Torres Strait Islanders.
(4) If the carrying out of the forensic
procedure is not to be video recorded, the forensic procedure must be carried
out in the presence of an independent person (not a constable).
Subdivision F—Procedure after forensic procedure is carried out
23XU
Samples—sufficient material to share
(1) This section applies to a sample taken
from a suspect under this Part if there is sufficient material to be analysed
both in the investigation of the offence and on behalf of the suspect.
(2) The
investigating constable must ensure that:
(a) a part of the material sufficient
for analysis is made available to the suspect as soon as practicable after the
procedure has been carried out; and
(b) that reasonable care is taken to
ensure that the suspect’s part of the material is protected and preserved until
the suspect receives it; and
(c) that reasonable assistance is
given to the suspect to ensure that the material is protected and preserved
until it can be analysed.
Note: Division 9 contains provisions about
making material available to the suspect.
23XUA
Samples—insufficient material to share
(1) This section applies to a sample taken
from a suspect under this Part if:
(a) there is not sufficient material
to be analysed both in the investigation of the offence and on behalf of the
suspect; and
(b) the material does not need to be
analysed immediately after the sample is taken.
(2) The suspect is entitled to request that a
person of his or her choice be present while the material is analysed in the
investigation of the offence.
Note: Section 23YE provides that the request
may be made by the suspect’s legal representative or interview friend.
(3) The person chosen is to be present at the
analysis of the material unless he or she:
(a) is unable, or does not wish, to
attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time
in which the person responsible for analysing the material considers the
analysis should be carried out if it is to provide valid results.
23XV
Photographs
Where a
forensic procedure involves the taking of a photograph of a part of a suspect’s
body, the investigating constable must ensure that a copy of the photograph is
made available to the suspect.
Note: Division 9 contains provisions about
making copies of material available to the suspect.
23XW
Results of analysis
If material from a sample taken from a
suspect is analysed in the investigation of the offence, the investigating
constable must ensure that a copy of the results of the analysis is made
available to the suspect.
Note: Division 9 contains provisions about
making copies of material available to the suspect.
23XWA
Preventing the carrying out of forensic procedure
A person is guilty of an offence if the
person obstructs, hinders or resists a person carrying out a forensic procedure
in accordance with this Part.
Penalty: Imprisonment for 2 years.
Division 6A—Carrying out of certain forensic procedures after conviction
of serious and prescribed offenders
23XWB
Forensic procedures to which Division applies
Intimate forensic procedures to which Division applies
(1) This Division applies to the following
intimate forensic procedures:
(a) the taking of a sample of blood;
(b) the taking of a buccal swab.
Non‑intimate forensic procedures to which
Division applies
(2) This Division applies to the following
non‑intimate forensic procedures:
(a) the taking of samples of hair
other than pubic hair;
(b) the taking of fingerprints.
Application of Division
(3) A person is authorised by this section to
carry out a forensic procedure under this Division on a serious offender or a
prescribed offender whether convicted of the serious or prescribed offence
concerned before or after the commencement of this section.
23XWC Non‑intimate
forensic procedures authorised to be carried out on offenders
(1) A person is authorised to carry out a non‑intimate
forensic procedure to which this Division applies on a person (other than a
child or an incapable person) who is a serious offender:
(a) with the informed consent of the
serious offender; or
(b) by order of a constable under
section 23XWK.
(2) A person is authorised to take the
fingerprints of a prescribed offender (other than a child or an incapable
person):
(a) with the informed consent of the
prescribed offender; or
(b) by order of a constable under
section 23XWK.
(3) A person is authorised to carry out a non‑intimate
forensic procedure to which this Division applies on a child or an incapable
person who is a serious offender, or to take the fingerprints of a child or
incapable person who is a prescribed offender, by order of a magistrate under
section 23XWO.
23XWD
Intimate forensic procedures authorised to be carried out on serious offenders
A person is authorised to carry out an
intimate forensic procedure to which this Division applies on a person (other
than a child or incapable person) who is a serious offender:
(a) with the informed consent of the
serious offender; or
(b) by order of a magistrate under
section 23XWO.
23XWE
Application of Division 6
(1) Division 6 applies to the carrying
out under this Division of a forensic procedure on an offender as if the
references to the suspect in Division 6 were references to the offender.
(2) A person is authorised by section 23XWC
or 23XWD to carry out a forensic procedure under this Division in accordance
with Division 6 as applied by this section and not otherwise.
23XWF
Scope of authorisation
(1) A person is not authorised to carry out a
forensic procedure under this Division on a serious offender or a prescribed
offender if the serious offender or prescribed offender is a suspect or a
volunteer.
(2) A forensic procedure may be carried out
on a serious offender or prescribed offender who is a suspect only if authorised
by and in accordance with Divisions 2 to 5.
(3) A forensic procedure may be carried out
on a serious offender or prescribed offender who is a volunteer only if
authorised by and in accordance with Division 6B.
23XWG
Informed consent to forensic procedures
(1) An offender gives informed consent to a
forensic procedure if the offender consents after a constable:
(a) requests the offender to consent
to the forensic procedure under section 23XWH; and
(b) informs the offender about the
forensic procedure in accordance with section 23XWJ; and
(c) gives the offender the opportunity
to communicate, or attempt to communicate, with a legal practitioner of the
offender’s choice.
(2) The constable must allow the offender to
communicate, or attempt to communicate, with the legal practitioner in private
unless the constable suspects on reasonable grounds that the offender might
attempt to destroy or contaminate any evidence that might be obtained by
carrying out the forensic procedure.
Note: Section 23YI states that the burden lies
on the prosecution to prove on the balance of probabilities that a constable
had a suspicion on reasonable grounds.
23XWH
Constable may request offender to consent to forensic procedure
A constable may request:
(a) a serious offender (other than a
child or an incapable person) to consent to an intimate or non‑intimate
forensic procedure to which this Division applies being carried out on the
serious offender; or
(b) a prescribed offender (other than
a child or an incapable person) to consent to the taking of the offender’s
fingerprints.
23XWI
Matters to be considered by constable before requesting consent to forensic
procedure
Before a request is made under section 23XWH,
the constable must be satisfied on the balance of probabilities that:
(a) in the case of a person on whom
the procedure is proposed to be carried out who is not serving a sentence of
imprisonment in a prison or other place of detention—that the person is an
offender; and
(b) the request for consent to carry out
the forensic procedure is justified in all the circumstances.
23XWJ
Matters that offender must be informed of before giving consent
(1) The constable must inform the offender of
the following:
(a) the purpose for which the forensic
procedure is required;
(b) if the constable wants the
forensic procedure carried out in relation to an offence—the offence concerned;
(c) the way in which the forensic
procedure is to be carried out;
(d) that the forensic procedure may
produce evidence against the offender that might be used in a court of law;
(e) that the forensic procedure will
be carried out by a person who may carry out the procedure under Division 6
as applied by section 23XWE;
Note: See section 23XM.
(f) if the forensic procedure is the
taking of a sample of blood, that the offender may request that:
(i) if the offender is
serving a sentence of imprisonment in a prison or other place of detention—the
prison medical officer be present while the blood is taken; or
(ii) if the offender is not
serving a sentence of imprisonment—a medical practitioner of the offender’s
choice be present while the blood is taken;
(g) that the offender may refuse
consent to the carrying out of the forensic procedure;
(h) the consequences of not
consenting, as specified in subsection (2) or (3) (whichever is
applicable);
(i) the effect of section 23XZ
(if applicable);
(j) that information obtained from
analysis of forensic material obtained may be placed on the Commonwealth DNA
database system and used for the purposes of a criminal investigation or for
any other purpose for which the Commonwealth DNA database system may be used
under Division 8A.
Effect of failure to consent to non‑intimate
forensic procedure
(2) The constable must inform a serious
offender requested to undergo a non‑intimate forensic procedure to which
this Division applies or a prescribed offender requested to consent to the
taking of his or her fingerprints that, if the offender does not consent, a
constable may order the carrying out of the forensic procedure under section 23XWK
if the constable has taken into account the matters set out in section 23XWL.
Effect of failure to consent to intimate forensic
procedure
(3) The constable must inform a serious
offender requested to undergo an intimate forensic procedure to which this
Division applies that, if the serious offender does not consent, an application
may be made to a magistrate for an order authorising the carrying out of the
forensic procedure.
23XWK
Circumstances in which constable may order non‑intimate forensic
procedure
A constable may order the carrying out
of a non‑intimate forensic procedure to which this Division applies on a
serious offender or the taking of the fingerprints of a prescribed offender
other than a child or an incapable person if:
(a) the offender has been asked under
section 23XWH to consent to the carrying out of the forensic procedure;
and
(b) the offender has not consented;
and
(c) the constable has taken into
account the matters set out in section 23XWL.
23XWL Matters
to be considered by constable
In determining whether to make an order
under section 23XWK, the constable is to take into account:
(a) whether this Part would authorise
the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the
circumstances surrounding the offence committed by the offender; and
(c) whether the carrying out of the
forensic procedure could assist law enforcement, whether Federal or otherwise;
and
(d) whether the carrying out of the
forensic procedure without consent is justified in all the circumstances.
23XWM
Recording of giving of information and consent
(1) The constable must, if practicable,
ensure that the giving of the information about the proposed forensic procedure
and the offender’s responses (if any) are tape recorded.
(2) If tape recording the giving of the
information and the offender’s responses (if any) is not practicable, the
constable must ensure that:
(a) a written record of the giving of
the information and the offender’s responses (if any) is made; and
(b) a copy of the record is made
available to the serious offender.
Note: Division 9 contains provisions about
making copies of material (including tapes) available to the serious offender.
23XWN
Record of constable’s order
(1) The constable must, at the time of, or as
soon as practicable after, making an order under section 23XWK, make a
record of:
(a) the order; and
(b) the date and time when the order
was made; and
(c) the reasons for making it, and
sign the record.
(2) The constable must ensure that a copy of
the record is made available to the offender as soon as practicable after the
record is made.
23XWO
Judge or magistrate order for carrying out forensic procedure on offender
(1) An authorised applicant may apply to any
judge or magistrate for an order directing a serious offender to consent to an
intimate forensic procedure to which this Division applies being carried out on
the serious offender.
(2) An authorised applicant may apply to any
judge or magistrate for an order for the carrying out of a non‑intimate
forensic procedure to which this Division applies on a child or an incapable
person who is a serious offender.
(3) An application under subsection (1)
or (2) must be accompanied by an affidavit by the authorised applicant dealing
with the matters referred to in subsection (7).
(4) An authorised applicant may apply to any
judge or magistrate for an order for the taking of the fingerprints under this
Division of a child or an incapable person who is a prescribed offender.
(5) An authorised applicant may make an
application under this section to the judge or magistrate that is sentencing an
offender or to any other judge or magistrate at a later time.
(6) A judge or magistrate may order the
carrying out of a forensic procedure under this Division if satisfied that the
carrying out of the forensic procedure is justified in all the circumstances.
(7) In determining whether to make an order
under this section, a judge or magistrate is to take into account:
(a) whether this Part would authorise
the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the
circumstances surrounding the commission of the offence by the offender; and
(c) whether the carrying out of the
forensic procedure could assist law enforcement, whether Federal or otherwise;
and
(d) whether the carrying out of the
forensic procedure is justified in all the circumstances.
(8) An order under this section takes effect
immediately. However, the person who conducts any analysis of forensic material
obtained as a result of carrying out the forensic procedure on an offender must
not disclose the results of the analysis:
(a) until the expiration of any appeal
period or after the final determination of any appeal in relation to the
offence concerned, whichever is the later; or
(b) if the conviction is quashed.
23XWP
Carrying out forensic procedure following conviction
(1) If:
(a) an offender is in prison or
another place of detention; and
(b) a judge or magistrate orders the
offender to permit a forensic procedure to be carried out under this Division;
the judge or magistrate may order that a constable and a
Division 6 person be permitted to attend on the offender in the prison or
place of detention to allow the forensic procedure to be carried out.
(2) In subsection (1), Division 6
person means a person who, under Division 6 as applied by section 23XWE,
may carry out the forensic procedure.
(3) If a judge or magistrate orders an
offender who is not in a prison or another place of detention to permit a
forensic procedure to be carried out, the judge or magistrate may order the
offender to attend at a police station (or other place specified by the judge
or magistrate) within a period specified by the judge or magistrate to allow
the forensic procedure to be carried out.
(4) An offender ordered to permit the
carrying out of a forensic procedure is guilty of an offence if the offender,
without reasonable excuse, refuses or fails to permit the forensic procedure to
be carried out.
Penalty: Imprisonment for 12 months.
Note: A defendant bears the evidential burden in
relation to the exception of reasonable excuse—see subsection 13.3(3) of the Criminal
Code.
Division 6B—Carrying out of forensic procedures on volunteers and certain
other persons
23XWQ
Carrying out of forensic procedures on volunteers
(1) In this Part:
volunteer means a person:
(a) who volunteers to a constable to
undergo a forensic procedure; or
(b) in the case of a child or incapable
person—whose parent or guardian volunteers on the child or incapable person’s
behalf to a constable that the child or incapable person undergo a forensic
procedure.
(2) A person is authorised to carry out a
forensic procedure:
(a) on a volunteer other than a child
or an incapable person—with the informed consent of the volunteer given in
accordance with section 23XWR; or
(b) on a volunteer who is a child or
an incapable person:
(i) with the informed
consent of the parent or guardian of the volunteer given in accordance with
section 23XWR or by order of a magistrate under section 23XWU; and
(ii) after the person has
informed the child or incapable person that, even though consent has been given
or an order made, if he or she objects to or resists the carrying out of the
forensic procedure it will not be carried out.
(3) This section only authorises a person to
carry out a forensic procedure if the procedure is necessary, or incidental to,
the carrying out of an AFP function.
(4) This section does not authorise a person
to carry out a forensic procedure on a child or an incapable person who objects
to or resists the carrying out of the forensic procedure.
(5) Division 6 applies to the carrying
out of a forensic procedure under this Division as if the references to a
suspect in that Division were references to a volunteer referred to in this
section. A person is authorised by this section to carry out a forensic
procedure on a volunteer in accordance with Division 6 as so applied and
not otherwise.
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 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 volunteer has a choice as
to whether the information is stored on the volunteers (limited purposes) index
or the volunteers (unlimited purposes) index of that system;
(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;
(e) any other matters prescribed by
the regulations.
23XWS
Recording of giving of information and consent
(1) The constable must, if practicable,
ensure that the giving of the information about the proposed forensic procedure
and the volunteer’s or volunteer’s parent’s or guardian’s responses (if any)
are tape recorded.
(2) If tape recording the giving of
information and the volunteer’s, parent’s or guardian’s responses (if any) is
not practicable, the constable must ensure that:
(a) a written record of the giving of
the information and the volunteer’s, parent’s or guardian’s responses (if any)
is made; and
(b) a copy of the record is made
available to the volunteer, parent or guardian.
23XWT
Withdrawal of consent
(1) If a volunteer, or parent or guardian of
the volunteer, expressly withdraws consent to the carrying out of a forensic
procedure under this Division (or if the withdrawal of such consent can reasonably
be inferred from the volunteer’s, parent’s or guardian’s conduct) before or
during the carrying out of the forensic procedure:
(a) the forensic procedure is to be
treated from the time of the withdrawal as a forensic procedure for which
consent has been refused; and
(b) the forensic procedure is not to
proceed except (in the case of a child or incapable person) by order of a
magistrate under section 23XWU.
(2) If:
(a) a forensic procedure is carried
out on a volunteer under this Division; and
(b) after the procedure is carried
out, the volunteer, or the parent or guardian of the volunteer, expressly
withdraws consent to retention of the forensic material taken or of information
obtained from the analysis of that material;
then, subject to any order made under section 23XWV,
the forensic material and any information obtained from analysis of the
material is to be destroyed as soon as practicable after the consent is
withdrawn.
(3) A constable may request, but cannot
require, a parent or guardian who withdraws consent to the carrying out of a
forensic procedure under this Division to confirm the withdrawal of consent in
writing.
23XWU
Circumstances in which magistrate may order the carrying out of forensic
procedure on a child or incapable person
(1) A magistrate may order the carrying out
of a forensic procedure on a child or incapable person if:
(a) the consent of the parent or
guardian of the child or incapable person to the carrying out of the forensic
procedure cannot reasonably be obtained from a parent or guardian of the child
or incapable person; or
(b) the parent or guardian of the
child or incapable person refuses consent to the carrying out of the forensic
procedure and the magistrate is satisfied that there are reasonable grounds to believe:
(i) that the parent or
guardian is a suspect; and
(ii) that the forensic
procedure is likely to produce evidence tending to confirm or disprove that he
or she committed an offence; or
(c) the parent or guardian of the
child or incapable person consented to the carrying out of the forensic
procedure, but subsequently withdraws that consent.
(2) In determining whether to make an order
under this section, the magistrate is to take into account the following:
(a) whether this Part would authorise the
carrying out of the forensic procedure apart from this section;
(b) if the forensic procedure is being
carried out for the purposes of the investigation of a particular offence—the
seriousness of the circumstances surrounding the commission of the offence;
(c) the best interests of the child or
incapable person;
(d) so far as they can be ascertained,
any wishes of the child or incapable person with respect to whether the
forensic procedure should be carried out;
Note: A forensic procedure cannot be carried out on
a child or an incapable person who objects to or resists the carrying out of
the procedure even if the magistrate makes an order. See subparagraph
23XWQ(2)(b)(ii) and subsection 23XWQ(3).
(e) except in the circumstances
referred to in paragraph (1)(b), any wishes expressed by the parent or
guardian of the child or incapable person with respect to whether the forensic
procedure should be carried out;
(f) whether the carrying out of the
forensic procedure is justified in all the circumstances.
(3) An order under this section may:
(a) require the forensic procedure to
be carried out at a time, or place, or in a manner, specified in the order; or
(b) specify the period for which
forensic material obtained from carrying out the procedure may be retained.
23XWV
Retention of forensic material by order of a magistrate after volunteer, parent
or guardian of child or incapable person withdraws consent
(1) An authorised applicant may apply to a
magistrate for an order under subsection (2).
(2) A magistrate may order that forensic
material taken or information obtained from carrying out a forensic procedure
on a volunteer who withdraws consent, or parent or guardian of a
volunteer who withdraws consent, as the case may be, to the retention of the
material be retained if the magistrate is satisfied that:
(a) during an investigation into the
commission of a serious offence, material reasonably believed to be from the
body of a person who committed the offence had been found:
(i) at the scene of the offence;
or
(ii) on the victim of the
offence or anything reasonably believed to have been worn or carried by the
victim when the offence was committed; or
(iii) on the volunteer or
anything reasonably believed to have been worn or carried by the volunteer at
the scene of the offence or when the offence was committed; or
(iv) on an object or person
reasonably believed to have been associated with the commission of the offence;
and
(b) there are reasonable grounds to
believe that information obtained from analysis of the forensic material taken
from the volunteer is likely to produce evidence of probative value in relation
to the serious offence being investigated; and
(c) the retention of the forensic
material taken from the volunteer is justified in all the circumstances.
(3) The order may specify the period for
which the forensic material taken or information obtained from carrying out the
procedure may be retained.
Division 7—Admissibility of evidence
Subdivision A—Forensic evidence
23XX
Inadmissibility of evidence from improper forensic procedures etc.
(1) This section applies where:
(a) a forensic procedure has been
carried out on a person; and
(b) there has been a breach of, or
failure to comply with:
(i) any provision of this
Part in relation to a forensic procedure carried out on the person (including,
but not limited to, any breach or failure to comply with a provision requiring
things to be done at any time before or after the forensic procedure is carried
out); or
(ii) any provision of Division 8A
with respect to recording or use of information on the Commonwealth DNA
database system.
(2) This section does not apply where:
(a) a provision of this Part required
forensic material to be destroyed; and
(b) the forensic material has not been
destroyed.
Note: Section 23XY applies where this Part
requires forensic material to have been destroyed.
(3) This section applies to:
(a) evidence of forensic material, or
evidence consisting of forensic material, taken from the person by the forensic
procedure; and
(b) evidence of any results of the
analysis of the forensic material; and
(c) any other evidence made or
obtained as a result of or in connection with the carrying out of the forensic
procedure.
(4) Where this section applies, evidence described
in subsection (3) is not admissible in any proceedings against the person
in a court unless:
(a) the person does not object to the
admission of the evidence; or
(b) the court is satisfied on the
balance of probabilities of matters that, in the court’s opinion, justify the
admission of the evidence in the proceedings in spite of the failure to comply
with the provisions of this Part.
(5) The
matters that may be considered by the court for the purposes of paragraph (4)(b)
are the following:
(a) the probative value of the
evidence, including whether equivalent evidence or evidence of equivalent
probative value could have been obtained by other means;
(b) the reasons given for the failure
to comply with the provisions of this Part;
(c) the gravity of the failure to
comply with the provisions of this Part, and whether the failure deprived the
person of a significant protection under this Part;
(d) whether the failure to comply with
the provisions of this Part was intentional or reckless;
(e) the nature of the provision of
this Part that was not complied with;
(f) the nature of the offence
concerned and the subject matter of the proceedings;
(g) whether admitting the
evidence would seriously undermine the protection given to persons by this
Part;
(h) any other matters the court
considers to be relevant.
(6) The probative value of the evidence does
not by itself justify the admission of the evidence.
(7) If a judge permits evidence to be given
before a jury under subsection (4), the judge must:
(a) inform the jury of the breach of,
or failure to comply with, a provision of this Part; and
(b) give the jury such warning about
the evidence as the judge thinks appropriate in the circumstances.
23XY
Inadmissibility of evidence where forensic material required to be destroyed
(1) If a
provision of this Part requires forensic material taken from a person by a
forensic procedure to be destroyed, subsection (2) applies to:
(a) evidence of the forensic material;
and
(b) if the material has not been destroyed—evidence
consisting of the forensic material; and
(c) any results of the analysis of the
forensic material; and
(d) any other evidence made or
obtained as a result of or in connection with the carrying out of the forensic
procedure.
(2) The results of the analysis, and the
other evidence, are not admissible if adduced by the prosecution in any
proceedings against the person, but may be admissible if adduced in such
proceedings by the person.
Subdivision B—Other evidence
23XZ
Admissibility of evidence relating to consent to forensic procedure
Evidence of a person’s refusal or
failure to consent, or withdrawal of consent, to a forensic procedure is not
admissible in proceedings against the person except to establish or rebut an
allegation that a constable or another person investigating the commission of
the offence concerned acted contrary to law in carrying out that investigation.
23YA
Admissibility of evidence relating to carrying out of forensic procedure
In spite of subsection 23XX(4), evidence
of how a forensic procedure was carried out is admissible in proceedings
against the person in a court:
(a) to establish or rebut an
allegation that unreasonable force was used to enable the procedure to be
carried out; or
(b) to determine the admissibility of
a confession or admission or other evidence adverse to the person where the
person alleges that the evidence was induced or obtained by the use of
unreasonable force; or
(c) to establish or rebut an
allegation that the forensic procedure was not carried out in accordance with
Division 6.
23YB
Obstructing the carrying out of forensic procedure
(1) This section applies where a constable or
magistrate has ordered the carrying out of a forensic procedure on a suspect
under this Part.
(2) Subject to subsections (3) and (4),
evidence that the suspect:
(a) refused to comply with any
reasonable direction in connection with the carrying out of the forensic
procedure; or
(b) obstructed,
resisted, hindered, used violence against, threatened or intimidated a person
in connection with the carrying out of the forensic procedure;
is admissible in any proceedings against the suspect in
respect of a relevant offence.
(3) Evidence described in subsection (2)
is not admissible if the forensic procedure was in fact carried out
satisfactorily.
(4) Evidence described in subsection (2)
is not admissible unless it is established that the suspect:
(a) had been informed by a constable
as described in subsection 23WA(4); or
(b) otherwise knew;
that the fact of refusing to comply with the direction, or
obstructing, resisting, hindering, using violence against, threatening or
intimidating the person, in connection with the carrying out of the forensic
procedure might be used in evidence against the suspect.
(5) The court or jury may draw such
inferences from the evidence described in subsection (2) as appear to the
court or jury to be proper in the circumstances, having regard to any evidence
given by or on behalf of the suspect.
Division 8—Destruction of forensic material
23YC
Destruction of forensic material where interim order disallowed
(1) If an interim order for the carrying out
of a forensic procedure made under section 23XA is disallowed after the
forensic procedure is carried out, the investigating constable must ensure
that:
(a) all forensic material obtained as
a result of the carrying out of the procedure is destroyed as soon as
practicable after the disallowance; and
(b) a copy of the results of any
analysis of the forensic material are made available to the suspect.
Note: Division 9 contains provisions about
making copies of material available to the suspect.
(2) If an order for the carrying out of a
forensic procedure made under section 23XWU or for the retention of
forensic material under section 23XWV specifies a period for which
forensic material obtained as a result of the carrying out of the procedure may
be retained, the forensic material is to be destroyed as soon as practicable
after the end of the period.
23YD
Destruction of forensic material after 12 months
(1) This section applies where forensic
material has been taken from a suspect by a forensic procedure carried out
under this Part (except Divisions 6A and 6B).
(2) If:
(a) a period of 12 months has elapsed
since the forensic material was taken; and
(b) proceedings in respect of a
relevant offence have not been instituted against the suspect, or have been
discontinued;
the forensic material must be destroyed as soon as
practicable unless a warrant for apprehension of the suspect has been issued.
(3) If:
(a) the suspect is found to have
committed a relevant offence but no conviction is recorded; or
(b) the suspect is acquitted of such
an offence and:
(i) no appeal is lodged
against the acquittal; or
(ii) an appeal is lodged
against the acquittal and the acquittal is confirmed or the appeal is
withdrawn;
the forensic material must be
destroyed as soon as practicable unless an investigation into, or a proceeding
against the suspect for, another relevant offence is pending.
(4) If a warrant for the apprehension of the
suspect is issued during the period of 12 months after forensic material is
taken, the forensic material must be destroyed as soon as practicable after:
(a) the warrant lapses; or
(b) a period of 12 months elapses
after the suspect is apprehended.
(5) A magistrate may, on application by a
constable or the Director of Public Prosecutions, extend for a period not
exceeding 12 months the period for which forensic material may be retained
under this section, if the magistrate is satisfied there are special reasons
for doing so.
(6) A magistrate to whom an application is
made under subsection (5) is not to extend the period unless:
(a) the person from whom the forensic
material was taken has been notified by the applicant for the extension that
the application has been made; and
(b) the person or his or her legal
representative or interview friend (if any) has been given the opportunity to
speak to or make a submission to the magistrate concerning the extension.
(7) An extension in relation to particular
forensic material may be given on more than one occasion.
(8) The magistrate is to ensure that the
responsible person in relation to the Commonwealth DNA database system is
notified of any extension given under this section.
23YDAA
Destruction of forensic material taken from offender after conviction quashed
The constable who obtained an authority
under section 23XWG, 23XWK or 23XWO for the carrying out of a forensic
procedure on an offender whose conviction is quashed after the making of the
order must ensure that any forensic material obtained as a result of the
carrying out of the procedure is destroyed as soon as practicable after the
conviction is quashed.
23YDAB
Destruction of forensic material where related evidence is inadmissible
If a magistrate finds that evidence
described in subsection 23XX(3) relating to a forensic procedure is
inadmissible under section 23XX, the Commissioner must, as soon as
practicable, ensure that any forensic material taken from the person by that
forensic procedure is destroyed.
Division 8A—Commonwealth and State/Territory DNA database systems
23YDAC
Definitions
In this Part:
Commonwealth agency means:
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth DNA database system means a
database (whether in computerised or other form and however described)
containing:
(a) the following indexes of DNA
profiles (in so far as they relate to material taken or obtained by a
Commonwealth agency):
(i) a crime scene index;
(ii) a missing persons
index;
(iii) an unknown deceased
persons index;
(iv) a serious offenders
index;
(v) a volunteers (unlimited
purposes) index;
(vi) a volunteers (limited
purposes) index;
(vii) a suspects index;
and, if the material is forensic
material, information that may be used to identify the person from whose
forensic material each DNA profile was derived; and
(b) a statistical index (in so far as
it relates to forensic material taken in accordance with this Part); and
(c) any
other index prescribed by the regulations for the purposes of this definition.
crime scene index means an index of DNA
profiles derived from forensic material found:
(a) at any place (whether within or
outside Australia) where an offence (whether a prescribed offence or an offence
under the law of a participating jurisdiction) was, or is reasonably suspected
of having been, committed; or
(b) on or within the body of the
victim, or a person reasonably suspected of being a victim, of a prescribed
offence; or
(c) on anything worn or carried by the
victim at the time when a prescribed offence was, or is reasonably suspected of
having been, committed; or
(d) on or within the body of any
person, on any thing, or at any place, associated with the commission of a prescribed
offence.
missing persons index
means an index of DNA profiles derived from forensic material of:
(a) persons who are missing; and
(b) volunteers who are relatives by
blood of missing persons.
National Criminal Investigation DNA Database or
NCIDD means the database that is known as the National Criminal
Investigation DNA Database and that is managed by the Commonwealth.
NCIDD: see National Criminal
Investigation DNA Database.
serious offenders index means an index of DNA
profiles derived from forensic material taken from:
(a) serious offenders in accordance
with Division 6A, or under a corresponding law of a participating
jurisdiction; and
(b) suspects who have been convicted
of a prescribed offence or an offence under a corresponding law of a participating
jurisdiction.
State/Territory DNA database system means a
database (whether in computerised or other form and however described) held by,
or on behalf of, a participating jurisdiction for the purposes of a
corresponding law.
statistical index means an index of
information that:
(a) is obtained from the analysis of
forensic material taken from persons in accordance with this Part or under a
corresponding law of a participating jurisdiction; and
(b) has been compiled for statistical
purposes; and
(c) cannot be used to discover the
identity of persons from whom the forensic material was taken.
suspects index means an index of DNA profiles
derived from forensic material taken from suspects in accordance with Division 3,
4 or 5 or under a corresponding law of a participating jurisdiction.
unknown deceased persons index means an index
of DNA profiles derived from forensic material of deceased persons whose
identities are unknown.
volunteers (limited purposes) index means an
index of DNA profiles derived from forensic material taken in accordance with
Division 6B or under a corresponding law of a participating
jurisdiction from volunteers who (or whose parents or guardians) have been
informed that information obtained will be used only for a purpose specified to
them under paragraph 23XWR(2)(b).
volunteers (unlimited purposes) index means
an index of DNA profiles derived from forensic material taken:
(a) from volunteers who (or whose
parents or guardians) have been informed under paragraph 23XWR(2)(c) that
information obtained may be used for the purpose of a criminal investigation or
any other purpose for which the Commonwealth DNA database system may be used
under this Division, in accordance with Division 6B, or under a
corresponding law of a participating jurisdiction; and
(b) from deceased persons whose
identity is known.
23YDACA
Integration of Commonwealth DNA database system and State/Territory DNA
database systems
(1) The whole or a part of the Commonwealth
DNA database system, or information obtained from the Commonwealth DNA database
system, may be integrated (whether electronically or otherwise) with:
(a) the whole or a part of one or more
State/Territory DNA database systems; or
(b) information obtained from one or
more State/Territory DNA database systems;
to form part of NCIDD.
(2) A participating jurisdiction, or an
authority of a participating jurisdiction, may access NCIDD to the extent that
it consists of:
(a) the whole or a part of the
State/Territory DNA database system of the participating jurisdiction; or
(b) information obtained from the
State/Territory DNA database system of the participating jurisdiction;
but only if the participating jurisdiction, or the
authority of the participating jurisdiction, is required or authorised by or
under a law of the participating jurisdiction to access the State/Territory DNA
database system of the participating jurisdiction.
(3) No part of a State/Territory DNA database
system, and no information obtained from a State/Territory DNA database system,
forms part of the Commonwealth DNA database system by reason only of any
integration referred to in subsection (1).
(4) No part of the Commonwealth DNA database
system, and no information obtained from the Commonwealth DNA database system,
forms part of a State/Territory DNA database system by reason only of any
integration referred to in subsection (1).
(5) The existence of the Commonwealth DNA
database system or a State/Territory DNA database system is not affected by
reason only of any integration referred to in subsection (1).
23YDAD
Supply of forensic material for purposes of DNA database
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct results in
the forensic material taken from any person, and which is required to be
destroyed, under this Part or under a corresponding law of a participating
jurisdiction, to be supplied to another person; and
(c) the person is reckless as to
whether the forensic material is required to be destroyed and the supply of the
material to the other person; and
(d) the person intends that the
forensic material be analysed for the purpose of deriving a DNA profile for
inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) that conduct results in the supply
of forensic material to any person and the person is reckless as to that
result; and
(c) the person is reckless as to
whether the forensic material is not excluded forensic material; and
(d) the person intends that the
forensic material be analysed for the purpose of deriving a DNA profile for
inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(3) In this
section:
excluded forensic material means forensic
material:
(a) found at a crime scene; or
(b) taken from a suspect in accordance
with Division 3, 4 or 5 or under a corresponding law of a participating
jurisdiction; or
(c) taken from a serious offender or a
volunteer in accordance with Division 6A or 6B or under a
corresponding law of a participating jurisdiction; or
(d) taken from the body of a deceased
person; or
(e) that is from the body of a missing
person; or
(f) taken from a volunteer who is a
relative by blood of a deceased or missing person.
23YDAE
Use of information on Commonwealth DNA database system or NCIDD
(1) A person is guilty of an offence if the
person accesses information stored on the Commonwealth DNA database system or
NCIDD otherwise than in accordance with this section.
Penalty: Imprisonment for 2 years.
(2) A person may access information stored on
the Commonwealth DNA database system or NCIDD for one or more of the following
purposes:
(a) the purpose of forensic comparison
permitted under section 23YDAF (permissible matching);
(b) the purpose of making the
information available, in accordance with the regulations, to the person to
whom the information relates;
(c) the purpose of administering the Commonwealth
DNA database system, NCIDD or a State/Territory DNA database system;
(d) the purpose 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;
(e) the purpose of and in accordance
with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition
Act 1988;
(f) the purpose of a coronial inquest
or inquiry;
(g) the purpose of an investigation of
a complaint by the Privacy Commissioner of the Commonwealth or of a
participating jurisdiction.
(2A) A person may access information stored on
NCIDD in the circumstances permitted by subsection 23YDACA(2).
(3) This section does not apply to
information that cannot be used to discover the identity of any person.
23YDAF
Permissible matching of DNA profiles
(1) A matching of a DNA profile on an index
of the Commonwealth DNA database system specified in column 1 of the following
table with a DNA profile on another index of the system specified in column 2,
3, 4, 5, 6, 7 or 8 of the table is not permitted by this Part if:
(a) “no” is shown in relation to the
index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the index specified in
column 1; or
(b) “only if within purpose” is shown
in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the
volunteers (limited purposes) index specified in column 1 and the matching is
carried out for a purpose other than a purpose for which the DNA profile placed
on the volunteers (limited purposes) index specified in column 1 was so placed.
|
Profile to be matched
|
Is matching permitted?
|
|
Column 1
|
Column 2
Crime scene
|
Column 3
Suspects
|
Column 4
Volunteers (limited purposes)
|
Column 5
Volunteers (unlimited purposes)
|
Column 6
Serious offenders
|
Column 7
Missing persons
|
Column 8
Unknown deceased persons
|
|
1. crime scene
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
|
2. suspects
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
|
3. volunteers (limited
purposes)
|
only if within purpose
|
only if within purpose
|
only if within purpose
|
only if within purpose
|
only if within purpose
|
only if within purpose
|
only if within purpose
|
|
4. volunteers (unlimited
purposes)
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
|
5. serious offenders
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
|
6. missing persons
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
|
7.
unknown deceased persons
|
yes
|
yes
|
only if within purpose
|
yes
|
yes
|
yes
|
yes
|
(2) A person
is guilty of an offence if:
(a) the person’s conduct causes the
matching that is not permitted by this Part of a DNA profile on an index of the
Commonwealth DNA database system with a DNA profile on the same or another
index of the Commonwealth DNA database system; and
(b) the person is reckless as to any
such matching of profiles.
Penalty: Imprisonment for 2 years.
(3) This section does not make it an offence
for conduct to cause a matching that is not permitted by this Part if the
matching is solely for the purposes of administering the Commonwealth DNA
database system.
Note: A defendant bears the evidential burden in
relation to the matter in subsection (3)—see subsection 13.3(3) of the Criminal
Code.
23YDAG
Recording, retention and removal of identifying information on Commonwealth DNA
database system
(1) A person is guilty of an offence if:
(a) the person’s conduct causes any
identifying information about a person obtained from forensic material taken
from the person under this Part to be recorded or retained in the Commonwealth
DNA database system at any time after this Part requires the forensic material
to be destroyed; and
(b) the person is reckless as to the
recording or retention or whether the forensic material is required to be
destroyed.
Penalty: Imprisonment for 2 years.
(2) The responsible person is guilty of an
offence if he or she does not ensure that any identifying information, relating
to a person from whose forensic material a DNA profile on the volunteers
(unlimited purposes) index or volunteers (limited purposes) index of the Commonwealth
DNA database system was derived, is removed from the system as soon as
practicable after the end of the identifying period for the profile.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible
person.
(3) The responsible person is guilty of an
offence if he or she does not ensure that any identifying information relating
to a DNA profile of an offender on the serious offenders index of the Commonwealth
DNA database system is removed from the system as soon as practicable after
becoming aware that the offender has been pardoned or acquitted of the offence
concerned or if the conviction has been quashed.
Penalty: Imprisonment for 2 years.
Note: See subsection 23WA(1) for responsible
person.
(4) In this section:
identifying information means any information
that could be used:
(a) to discover the identity of the
person from whose forensic material the DNA profile was derived; or
(b) to get information about an
identifiable person.
identifying period for a DNA profile means
the following:
(a) except as provided by paragraphs (b)
and (c), the period of 12 months after the DNA profile is placed on the Commonwealth
DNA database system;
(b) if the DNA profile is derived from
forensic material taken from a volunteer—such period after the DNA profile is
placed on the Commonwealth DNA database system as is agreed by 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);
(c) if the DNA profile is derived from
forensic material taken from a deceased person (not being a person who was a
volunteer) whose identity is known—such period as the Commissioner orders the
responsible person to retain identifying information relating to the profile.
Division 9—General provisions relating to operation of this Part
23YDA
Interpreters
(1) Where:
(a) a constable proposes to take an
action listed in subsection (2); and
(b) the constable believes on
reasonable grounds that the suspect is unable, because of inadequate knowledge
of the English language or a physical disability, to communicate orally with
reasonable fluency in the English language;
the constable must, before taking the proposed action,
arrange for the presence of an interpreter, and defer taking the proposed
action until the interpreter is present.
(2) The actions are as follows:
(a) asking a suspect to consent to a
forensic procedure (Division 3);
(b) ordering the carrying out of a non‑intimate
forensic procedure on a suspect who is in custody (Division 4);
(c) applying to a magistrate for a
final order or an interim order for the carrying out of a forensic procedure on
a suspect (Division 5);
(d) cautioning a suspect (Division 6);
(e) carrying out, or arranging for the
carrying out of, a forensic procedure on a suspect (Division 6);
(f) giving a suspect an opportunity
to view a video recording made under this Part (section 23YF).
23YE
Powers etc. of legal representatives and interview friends
(1) A request or objection that may be made
by a suspect or offender under this Part may be made on the suspect’s or
offender’s behalf by:
(a) in any case—the suspect’s or
offender’s legal representative; or
(b) if the suspect or offender is a
child or an incapable person—an interview friend of the suspect or offender; or
(c) if the investigating constable
believes on reasonable grounds that the suspect or offender is an Aboriginal
person or a Torres Strait Islander—an interview friend of the suspect or
offender.
(2) If:
(a) a provision of this Part requires
a suspect or offender to be informed of a matter; and
(b) an interview friend or legal representative
of the suspect is present when the suspect or offender is to be so informed;
and
(c) the suspect or offender is so
informed in a language (including in sign language or braille) in which the
suspect’s or offender’s interview friend or legal representative is not able to
communicate with reasonable fluency;
the interview friend or legal representative must also be
informed of the matter in a language in which the interview friend or legal
representative is able to communicate with reasonable fluency.
23YF
Obligation of investigating constables relating to tape recordings
(1) If a tape recording is made as required
by a provision of this Part, the investigating constable must ensure that:
(a) if an audio recording only or a
video recording only is made—the recording, or a copy of it, is made available
to the suspect, offender or volunteer; and
(b) if both an audio recording and a
video recording are made:
(i) the audio recording,
or a copy of it, is made available to the suspect, offender or volunteer; and
(ii) the suspect, offender
or volunteer is given an opportunity to view the video recording; and
(c) in any case, if a transcript of
the tape recording is made—a copy of the transcript is made available to the
suspect, offender or volunteer.
(2) Where an investigating constable is
required to ensure that a suspect, offender or volunteer is given an
opportunity to view a video recording made under this Part, the investigating
constable must ensure that the same opportunity is given to:
(a) in any case—the suspect’s,
offender’s or volunteer’s legal representative; and
(b) if the suspect, offender or
volunteer is a child or an incapable person—an interview friend of the suspect,
offender or volunteer; and
(c) if the investigating constable
believes on reasonable grounds that the suspect, offender or volunteer is an
Aboriginal person or a Torres Strait Islander—an interview friend of the
suspect, offender or volunteer.
(3) If section 23YD requires forensic
material taken from a suspect, offender or volunteer by a forensic procedure to
be destroyed, the investigating constable must ensure that any video recording
of the carrying out of the forensic procedure is also destroyed.
23YG
Material required to be made available to suspect, offender or volunteer
(1) Material
from samples, copies, or any other material, that must be made available to a
suspect, offender or volunteer under this Part:
(a) may be sent to the suspect,
offender or volunteer at his or her last known address (if any), or to the
suspect’s, offender’s or volunteer’s legal representative (if any) at his or
her last known address; or
(b) if there is no known address as
mentioned in paragraph (a)—may be made available for collection by the
suspect, offender or volunteer at the police station where the investigating
constable was based at the time the forensic procedure was carried out.
(2) Material
of any kind (other than material from samples and copies of records made under
section 23XE) that is required by this Part to be made available to a
suspect, offender or volunteer must be made available in accordance with subsection (1):
(a) within 7 days after the material
comes into existence; or
(b) if the material is requested by
the suspect, offender or volunteer or the suspect’s, offender’s or volunteer’s
interview friend or legal representative, within 7 days of the request.
Note: The timing of making sample material available
is covered in section 23XU. The timing of making copies of section 23XE
records available is covered in subsection 23XE(5).
23YH
No charge to be made for giving material etc. to suspects, offenders and
volunteers
If a provision of this Part requires
material of any kind to be given to a suspect, offender or volunteer, or an
opportunity to view a video recording to be given to a suspect, offender or
volunteer, the material or the opportunity to view the video must be given
without charge.
23YI
Proof of belief or suspicion
In any proceedings, the burden lies on
the prosecution to prove on the balance of probabilities that a constable had a
belief on reasonable grounds, or suspected on reasonable grounds, as to a
matter referred to in this Part.
23YJ
Proof of impracticability
In any proceedings, the burden lies on
the prosecution to prove on the balance of probabilities that it was not
practicable to do something required by this Part to be done if practicable.
23YJA
Proof that time should be disregarded
In any proceedings, the burden lies on
the prosecution to prove on the balance of probabilities that any particular
time was covered by a provision of subsection 23WLA(2), 23XGB(2) or 23XGD(2).
23YK
Proof of voluntary waiver of certain rights
In any proceedings:
(a) the burden lies on the prosecution
to prove that an Aboriginal person or Torres Strait Islander has waived a right
as mentioned in subsection 23WG(3) or subsection 23XR(3); and
(b) the burden is not discharged
unless the court is satisfied on the balance of probabilities that the person
voluntarily waived that right, and did so with full knowledge and understanding
of what he or she was doing.
23YL
Liability for forensic procedures
No civil or criminal liability is
incurred by any person (including a constable) who carries out, or helps to
carry out, a forensic procedure under this Part in respect of anything properly
and necessarily done in good faith by the person in carrying out or helping to
carry out the forensic procedure if the person believed on reasonable grounds
that:
(a) informed consent had been given to
the carrying out of the forensic procedure; or
(b) the carrying out of the forensic
procedure without informed consent had been duly ordered by a constable or
magistrate under this Part.
Note: This section does not provide any protection
in respect of action taken maliciously.
23YM
Experts not obliged to carry out forensic procedures
Nothing in this Part requires a medical
practitioner, nurse, dentist, dental technician or appropriately qualified
person to carry out a forensic procedure.
23YN
Retention of electronic recordings
(1) A tape recording made by a constable in
accordance with this Part that is no longer required for investigative or
evidentiary purposes may be retained for such other purposes, and for such
period, as the Commissioner directs.
(2) A recording that is retained under this
section is to be stored so as to protect it against unauthorised access or use
by any person.
23YO
Disclosure of information
(1) A person is guilty of 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.
(1A) Paragraph (1)(a) does not apply to
access to information stored on NCIDD in the circumstances permitted by
subsection 23YDACA(2).
(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;
(e) the purposes of, and in accordance
with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition
Act 1988;
(f) the purpose of a coronial inquest
or inquiry;
(g) the purposes of an investigation
by the Privacy Commissioner or the Ombudsman of the Commonwealth or of a
participating jurisdiction.
(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 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.
(4) This section does not apply to
information that cannot be used to discover the identity of any person.
23YP
Taking, retention and use of forensic material
Taking, retention and use authorised by laws of other
jurisdictions
(1) Nothing in this Part affects the taking,
retention or use of forensic material, or information obtained from forensic
material, if the taking, retention or use of the material is authorised by or
under a law of a State or a Territory.
(2) Forensic material, or information
obtained from it, that was taken in accordance with a law of a State or a
Territory may be retained or used for investigative, evidentiary or statistical
purposes of the Commonwealth. The material or information may be retained or used
even if its retention or use would, but for this subsection, constitute a
breach of, or failure to comply with, any provision of this Part relating to
the carrying out of forensic procedures.
Use and retention of forensic material taken before
commencement of subsection
(3) Forensic material, or information
obtained from it, that is taken in accordance with a law of a State or a
Territory, as in force immediately before the commencement of this subsection,
may be retained or used for investigative, evidentiary or statistical purposes
of the Commonwealth. The material or information may be retained or used even
if its retention or use would, but for this subsection, constitute a breach of,
or failure to comply with, any provision of this Part relating to the carrying
out of forensic procedures.
23YQ
Commissioner may delegate functions and powers
(1) The Commissioner of the Australian
Federal Police may delegate all or any of his or her functions and powers under
this Part to a constable or staff member.
(2) In subsection (1), staff
member has the meaning it has in the Australian Federal Police Act
1979.
Division 10—Operation of this Part and effect on other laws
23YQA
Part does not apply to persons under 10
This Part does not authorise the carrying
out of a forensic procedure on a person who is under 10 years of age.
23YR
Relationship with Part IAA
This Part does not apply to the taking
of hand prints, finger prints, foot prints or toe prints:
(a) from a suspect who is under 18
years of age or is incapable of managing his or her affairs, if the suspect has
been arrested and charged as mentioned in section 3ZJ; or
(b) from a suspect who is at least 18
years of age and is capable of managing his or her affairs, if the suspect is
in lawful custody in respect of an offence as mentioned in section 3ZJ.
Note: Part IAA deals with the taking of
identification material as defined in subsection 3ZJ(1) (which includes prints)
from suspects described in paragraphs 23YR(a) and (b).
23YS
Relationship with Part IC
(1) Nothing in this Part is intended to limit
the rights and protections provided by Part IC to the extent that the
provisions of that Part can operate in circumstances covered by this Part.
(2) The rights and protections conferred by
this Part are in addition to those conferred by Part IC but, to the extent (if
any) that compliance with this Part results in compliance with Part IC, the
requirements of Part IC are satisfied.
23YU
Application of other laws
(1) This Part is not intended to limit or exclude
the operation of another law of the Commonwealth or of a law of a State or
Territory relating to:
(a) the carrying out of forensic
procedures, including procedures not referred to in this Part; or
(aa) without limiting paragraph (a),
the carrying out of breath analysis or a breath test or the production of
samples of blood and urine to determine the level of alcohol or drugs, if any,
present in a person’s body; or
(b) the taking of forensic samples,
including samples not referred to in this Part; or
(c) the taking of identification
evidence; or
(d) the carrying out of searches of
the person; or
(e) the retention or use of forensic
material or information obtained as a result of activities described in paragraphs (a),
(b), (c) and (d).
(2) To avoid any doubt, it is declared that
even though another law of the Commonwealth provides power to do one or more of
the things referred to in subsection (1), a similar power conferred by
this Part may be used despite the existence of the power under the other law.
Division 11—Interjurisdictional enforcement
23YUA
Definitions
In this Part:
appropriate authority means:
(a) in relation to a participating
jurisdiction other than the Australian Capital Territory—an authority
exercising, in relation to the police force of that jurisdiction, functions
corresponding to those of the Commissioner and any other authority prescribed
by the regulations; or
(b) in relation to the Australian
Capital Territory—the Commissioner and any other authority prescribed by the
regulations.
corresponding law means a law that:
(a) relates to the carrying out of
forensic procedures and DNA databases; and
(b) either:
(i) substantially
corresponds to this Part; or
(ii) is prescribed by the
regulations for the purposes of this definition.
participating jurisdiction means a State or
Territory in which there is a corresponding law in force.
responsible Minister of a participating
jurisdiction means a Minister of that jurisdiction who is responsible for
administration of a corresponding law.
23YUB
Registration of orders
(1) The Minister may enter into arrangements
with the responsible Ministers of the participating jurisdictions for the
establishment and maintenance, in one or more of those jurisdictions, of a
register of orders for the carrying out of forensic procedures made under this
Part or corresponding laws of participating jurisdictions.
(2) An order is registered when a copy of the
order (being a copy certified by the person who made it) is registered in
accordance with the law of the participating jurisdiction in which the register
is kept.
(3) An application for registration of an
order, or for cancellation of registration of an order, may be made by an
appropriate authority.
23YUC
Carrying out of registered orders
(1) A person is authorised to carry out the
forensic procedure authorised by an order that is registered in accordance with
an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth.
The person is authorised to carry out the procedure in accordance with Division 6
and not otherwise.
(2) A constable, or other person assisting a
constable in accordance with this Part or a corresponding law of a
participating jurisdiction, is not compelled by this Part, or an arrangement
referred to in subsection 23YUB(1), to execute an order registered under such
an arrangement.
23YUD
Database information
(1) The Minister may, on behalf of the
Commonwealth, enter into arrangements with a responsible Minister of a
participating jurisdiction under which:
(a) information from the Commonwealth
DNA database system is to be transmitted to the appropriate authority in the
participating jurisdiction; and
(b) information from the
State/Territory DNA database system of the participating jurisdiction is to be
transmitted to the Commissioner.
These arrangements may deal with keeping, and otherwise
managing, such information. Subject to subsection (1B), these arrangements
may also deal with using such information.
(1A) CrimTrac may, on behalf of the
Commonwealth, enter into an arrangement with a participating jurisdiction in
relation to:
(a) transmission of information to or
from the Commonwealth DNA database system, or any State/Territory DNA database
system; or
(b) keeping, and otherwise managing,
such information; or
(c) subject to subsection (1B),
using such information.
(1AA) Subject to subsection (1B), an
arrangement with a participating jurisdiction under subsection (1A) may
deal with:
(a) CrimTrac comparing information
transmitted in accordance with that arrangement with other information on
NCIDD; and
(b) CrimTrac identifying matches that
are found because of such comparisons and CrimTrac transmitting information
arising from such matches to that participating jurisdiction.
(1AB) Subsection (1AA) does not limit subsection (1A).
(1B) Information that is transmitted under this
section must not be used except for the purpose of:
(a) the investigation of a matter
relating to the participating jurisdiction, or proceedings in respect of that
matter; or
(b) the investigation of a matter
relating to the Commonwealth, or proceedings in respect of that matter.
(2) Information that is transmitted 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 Part or a corresponding law
of a participating jurisdiction requires the forensic material to which it
relates to be destroyed.
(3) In this section:
CrimTrac means the CrimTrac Agency,
established as an Executive Agency by the Governor‑General by order under
section 65 of the Public Service Act 1999.
investigation of a matter means:
(a) in relation to a participating
jurisdiction:
(i) an investigation of an
offence against the law of that jurisdiction; or
(ii) an investigation of a
missing person; or
(iii) an investigation for
the purpose of identifying a deceased person; or
(b) in relation to the Commonwealth:
(i) an investigation of an
offence against the law of the Commonwealth; or
(ii) an investigation of a
missing person; or
(iii) an investigation for
the purpose of identifying a deceased person.
Division 11A—Operation of this Part in relation to certain incidents
23YUE
Definitions
In this Division:
incident includes a series of incidents.
permitted purpose means either or both of the
following:
(a) the purpose of identifying an
unidentified person who died in or as a result of an incident in relation to
which this Division applies;
(b) the purpose of conducting a
criminal investigation in relation to such an incident.
23YUF
Application of this Division
(1) This Division applies in relation to the
following incidents:
(a) the bombings that occurred in Bali,
Indonesia on 12 October 2002 (local time);
(b) any incident that the Minister
determines, in writing, to be an incident in relation to which this Division
applies.
(2) Before making a determination under paragraph (1)(b),
the Minister must be satisfied that:
(a) if the determination would relate
to an incident occurring wholly outside Australia and Norfolk Island—one or
more Australian citizens or Australian residents have died in or as a result of
the incident; and
(b) it is appropriate in the
circumstances for this Division to apply in relation to the incident.
(2A) The Minister must not make a determination
under paragraph (1)(b) relating to an incident occurring wholly within Australia
or Norfolk Island unless:
(a) the Minister suspects on
reasonable grounds that the incident involves the commission of:
(i) an offence against a
law of the Commonwealth; or
(ii) a State offence that
has a federal aspect; or
(iii) an offence against a
law of a Territory; or
(b) the Minister suspects on
reasonable grounds that victims of the incident are persons of a kind with
respect to whom the Commonwealth Parliament has power to make laws; or
(c) the Minister is satisfied that the
incident is or has created a national emergency.
(2B) Without limiting paragraph (2A)(b),
the reference in that paragraph to persons of a kind with respect to whom the
Commonwealth Parliament has power to make laws includes references to the
following:
(a) aliens;
(b) persons receiving pensions,
benefits or allowances from the Commonwealth;
(c) members of the Australian Defence
Force;
(d) persons employed by, or holding an
office in, the Commonwealth;
(e) residents of a Territory.
(3) A determination under paragraph (1)(b)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
23YUG
Use of information on DNA database systems
(1) Despite section 23YDAE, a person may
access information stored on the Commonwealth DNA database system or NCIDD if:
(a) the access is for the purpose of
forensic comparison under a law of a State or Territory relating to forensic
procedures and DNA databases; and
(b) the forensic comparison is for a
permitted purpose.
(2) Despite any law of a State or Territory
relating to forensic procedures and DNA databases, a person may access
information stored on the Commonwealth DNA database system, NCIDD or a
State/Territory DNA database system if:
(a) the access is for the purpose of
forensic comparison under this Part; and
(b) the forensic comparison is for a
permitted purpose.
(3) Despite section 23YDAE or any law of
a State or Territory relating to forensic procedures and DNA databases, a
person may access information stored on the Commonwealth DNA database system,
NCIDD or a State/Territory DNA database system if the access is for the purpose
of disclosing that information under section 23YUI.
23YUH
Permissible matching of DNA profiles
(1) Despite section 23YDAF, a person may
match a DNA profile on the unknown deceased persons index of the Commonwealth
DNA database system with another DNA profile on that index if the matching is
for a permitted purpose.
(2) Despite any law of a State or Territory
relating to forensic procedures and DNA databases, a person may match a DNA
profile on the unknown deceased persons index of a State/Territory DNA database
system with another DNA profile on that index, or with another DNA profile on
the unknown deceased persons index of the Commonwealth DNA database system, if
the matching is for a permitted purpose.
23YUI
Disclosure of information
(1) Despite section 23YO, or any law of
a State or Territory relating to forensic procedures and DNA databases, a
person may disclose information stored on the Commonwealth DNA database system,
NCIDD or a State/Territory DNA database system if:
(a) the disclosure is to:
(i) any law enforcement
agency (within the meaning of the Australian Crime Commission Act 2002);
or
(ii) a foreign law
enforcement agency (within the meaning of that Act); or
(iii) the International
Criminal Police Organisation; or
(iv) any other agency or
body of the Commonwealth, a State or a Territory, or of a foreign country,
prescribed by the regulations; and
(b) the information is relevant to the
activities of that agency or body; and
(c) the disclosure is for a permitted
purpose.
(2) Despite section 23YO, or any law of
a State or Territory relating to forensic procedures and DNA databases, a
person may disclose information stored on the Commonwealth DNA database system,
NCIDD or a State/Territory DNA database system if:
(a) the information concerns the
result of a match of an unknown deceased person’s DNA profile with a missing
person’s DNA profile; and
(b) the disclosure is made to a
relative, guardian, spouse, de facto partner or friend of the deceased person.
23YUJ
This Division does not restrict operation of this Part
This Division does not limit the
circumstances in which a person may:
(a) access information stored on the
Commonwealth DNA database system, NCIDD or a State/Territory DNA database
system; or
(b) match a DNA profile on an index of
the Commonwealth DNA database system or a State/Territory DNA database system;
or
(c) disclose information stored on the
Commonwealth DNA database system, NCIDD or a State/Territory DNA database
system;
under this Part.
Note: See section 23YU on the effect of this
Part on other laws.
23YUK
Review of operation of this Division
(1) The Minister must cause an independent
review of the operation of this Division to be undertaken as soon as possible
after the first anniversary of the commencement of item 1 of Schedule 1
to the Crimes Amendment Act 2002 referred to in subsection 2(1) of that
Act.
(2) A person who undertakes the review must
give the Minister a written report of the review.
(3) The Minister must cause a copy of the
report to be tabled in each House of the Parliament within 15 sitting days of
that House after its receipt by the Minister.
(4) In this
section:
independent review
means a review undertaken by persons who:
(a) in the Minister’s opinion, possess
appropriate qualifications to undertake the review; and
(b) include a nominee of the Attorney‑General,
a nominee of the Commissioner of the Australian Federal Police, a nominee of
the Director of Public Prosecutions, a nominee of the Ombudsman and a nominee
of the Privacy Commissioner.
Division 11B—Concurrent operation of State and Territory laws
23YUL
Concurrent operation of State and Territory laws
The application of this Part in relation
to State offences that have a federal aspect is not intended to limit or
exclude the concurrent operation of any law of a State or of the Australian
Capital Territory.
Note 1: Subsection 3(1) defines State to
include the Northern Territory.
Note 2: Section 3AA has the effect that an offence
against a law of the Australian Capital Territory is a State offence that has a
federal aspect.
Division 12—Review of operation of Part
23YV
Review of operation of Part
(1) The Minister must cause an independent
review of:
(a) the operation of this Part; and
(b) the extent to which the forensic
procedures permitted by this Part have contributed to the conviction of
suspects; and
(ba) the effectiveness of independent
oversight and accountability mechanisms for the DNA database system; and
(bb) any disparities between the
legislative and regulatory regimes of the Commonwealth and participating
jurisdictions for the collection and use of DNA evidence; and
(bc) any issues relating to privacy or
civil liberties arising from forensic procedures permitted by this part; and
(c) any other matter in relation to this
Part which, in the Minister’s view, should be considered;
to be undertaken as soon as possible after the first
anniversary of the commencement of Schedule 1 to the Crimes Amendment
(Forensic Procedures) Act 2001 referred to in subsection 2(2) of that Act.
(2) A person who undertakes the review must
give the Minister a written report of the review.
(3) The Minister must cause a copy of the
report to be tabled in each House of the Parliament within 15 sitting days of
that House after its receipt by the Minister.
(4) In this section:
independent review means a review undertaken
by persons who:
(a) in the Minister’s opinion, possess
appropriate qualifications to undertake the review; and
(b) include a nominee of the Attorney‑General,
a nominee of the Commissioner of the Australian Federal Police, a nominee of
the Director of Public Prosecutions, a nominee of the Ombudsman and a nominee
of the Privacy Commissioner.
(5) If a written report tabled under subsection (3)
identifies inadequacies in respect of the matters referred to in subsection (1):
(a) the Minister must cause a further
independent review to be undertaken within 2 years of the tabling of that
report to ascertain whether the inadequacies have been effectively dealt with;
and
(b) subsections (2), (3) and (4)
apply in relation to the report of that further review in the same manner as
they apply in respect of the report of the original review.
Part II—Offences against the Government
24AA
Treachery
(1) A person shall not:
(a) do any act or thing with intent:
(i) to overthrow the
Constitution of the Commonwealth by revolution or sabotage; or
(ii) to overthrow by force
or violence the established government of the Commonwealth, of a State or of a
proclaimed country; or
(b) within the Commonwealth or a
Territory not forming part of the Commonwealth:
(i) levy war, or do any
act preparatory to levying war, against a proclaimed country;
(ii) assist by any means
whatever, with intent to assist, a proclaimed enemy of a proclaimed country; or
(iii) instigate a person to
make an armed invasion of a proclaimed country.
(2) Where a part of the Defence Force is on,
or is proceeding to, service outside the Commonwealth and the Territories not
forming part of the Commonwealth, a person shall not assist by any means
whatever, with intent to assist, any persons:
(a) against whom that part of the
Defence Force, or a force that includes that part of the Defence Force is or is
likely to be opposed; and
(b) who are specified, or included in
a class of persons specified, by proclamation to be persons in respect of whom,
or a class of persons in respect of which, this subsection applies.
(3) A person
who contravenes a provision of this section shall be guilty of an indictable
offence, called treachery.
Penalty: Imprisonment for life.
(4) In this
section:
proclaimed country means a country specified
by proclamation made for the purpose of this definition to be a proclaimed
country, and includes any colony, overseas territory or protectorate of that
country, or any territory for the international relations of which that country
is responsible, which is a colony, overseas territory, protectorate or
territory to which the proclamation is expressed to extend.
proclaimed enemy, in relation to a proclaimed
country, means an enemy:
(a) of and at war with a proclaimed
country, whether or not the existence of a state of war has been declared; and
(b) specified by proclamation made for
the purpose of this definition to be an enemy of and at war with that country.
(5) A proclamation shall not be made for the
purpose of the definition of proclaimed country, or for the
purpose of the definition of proclaimed enemy, in subsection (4)
except in pursuance of a resolution of each House of the Parliament passed
within the preceding period of 21 days.
24AB
Sabotage
(1) In this section:
act of sabotage means the destruction, damage
or impairment, with the intention of prejudicing the safety or defence of the
Commonwealth, of any article:
(a) that is used, or intended to be used,
by the Defence Force or a part of the Defence Force or is used, or intended to
be used, in the Commonwealth or a Territory not forming part of the
Commonwealth, by the armed forces of a country that is a proclaimed country for
the purposes of section 24AA;
(b) that is used, or intended to be
used, in or in connexion with the manufacture, investigation or testing of
weapons or apparatus of war;
(c) that is used, or intended to be
used, for any purpose that relates directly to the defence of the Commonwealth;
or
(d) that is in or forms part of a
place that is a prohibited place within the meaning of section 80.
article includes any thing, substance or
material.
(2) A person who:
(a) carries out an act of sabotage; or
(b) has
in his possession any article that is capable of use, and which he intends for
use, in carrying out an act of sabotage;
shall be guilty of an indictable offence.
Penalty: Imprisonment for 15 years.
(3) On a prosecution under this section it is
not necessary to show that the accused person was guilty of a particular act
tending to show an intention to prejudice the safety or defence of the
Commonwealth and, notwithstanding that such an act is not proved against him,
he may be convicted if, from the circumstances of the case, from his conduct or
from his known character as proved, it appears that his intention was to
prejudice the safety or defence of the Commonwealth.
(4) On a prosecution under this section,
evidence is not admissible by virtue of subsection (3) if the magistrate exercising
jurisdiction with respect to the examination and commitment for trial of the
defendant, or the judge presiding at the trial, as the case may be, is of the
opinion that that evidence:
(a) would not tend to show that the
defendant intended to prejudice the safety or defence of the Commonwealth; or
(b) would, having regard to all the
circumstances of the case and notwithstanding subsection (5), prejudice
the fair trial of the defendant.
(5) If evidence referred to in subsection (4)
is admitted at the trial, the judge shall direct the jury that the evidence may
be taken into account by the jury only on the question whether the defendant
intended to prejudice the safety or defence of the Commonwealth and must be
disregarded by the jury in relation to any other question.
24AC
Institution of prosecutions
(1) Proceedings for the commitment for trial
of a person, or for the summary conviction of a person, in respect of an
offence against section 24AA or 24AB shall not be instituted except by the
Attorney‑General or with the consent of the Attorney‑General or of
a person thereto authorized in writing by the Attorney‑General.
(2) Notwithstanding that consent has not been
obtained as provided by subsection (1):
(a) a person may be arrested for an
offence referred to in that subsection; or
(b) a
warrant for the arrest of a person for such an offence may be issued and
executed;
and he may be charged, and may be remanded in custody or
on bail, but:
(c) no further proceedings shall be
taken until that consent has been obtained; and
(d) he shall be discharged if
proceedings are not continued within a reasonable time.
24F
Certain acts done in good faith not unlawful
(1) Nothing in the preceding provisions of
this Part makes it unlawful for a person:
(a) to endeavour in good faith to show
that the Sovereign, the Governor‑General, the Governor of a State, the
Administrator of a Territory, or the advisers of any of them, or the persons
responsible for the government of another country, has or have been, or is or
are, mistaken in any of his or their counsels, policies or actions;
(b) to point out in good faith errors
or defects in the government, the constitution, the legislation or the
administration of justice of or in the Commonwealth, a State, a Territory or
another country, with a view to the reformation of those errors or defects;
(c) to excite in good faith another
person to attempt to procure by lawful means the alteration of any matter
established by law in the Commonwealth, a State, a Territory or another
country;
(d) to point out in good faith, in
order to bring about their removal, any matters that are producing, or have a
tendency to produce, feelings of ill‑will or hostility between different
classes of persons; or
(e) to do anything in good faith in
connexion with an industrial dispute or an industrial matter.
(2) For the purpose of subsection (1),
an act or thing done:
(a) for a purpose intended to be
prejudicial to the safety or defence of the Commonwealth;
(b) with intent to assist an enemy:
(i) at war with the
Commonwealth; and
(ii) specified by
proclamation made for the purpose of paragraph 80.1(1)(e) of the Criminal
Code to be an enemy at war with the Commonwealth;
(ba) with intent to assist:
(i) another country; or
(ii) an organisation
(within the meaning of section 100.1 of the Criminal Code);
that is engaged in armed
hostilities against the Australian Defence Force;
(c) with intent to assist a proclaimed
enemy, as defined by subsection 24AA(4) of this Act, of a proclaimed country as
so defined;
(d) with intent to assist persons
specified in paragraphs 24AA(2)(a) and (b) of this Act; or
(e) with the intention of causing
violence or creating public disorder or a public disturbance;
is not an act or thing done in good faith.
25 Inciting
mutiny
(1) Any person who intentionally attempts:
(a) to seduce any person serving in
the Queen’s Forces from his duty and allegiance; or
(b) to incite any person serving in
the Queen’s Forces to commit an act of mutiny, or any traitorous or mutinous
act; or
(c) to
incite any person serving in the Queen’s Forces to make or endeavour to make a
mutinous assembly;
shall be guilty of an
indictable offence.
Penalty: Imprisonment for life.
(2) In this section the expression “person
serving in the Queen’s Forces” includes any person serving in an arm of the
Defence Force of Australia or in the armed forces of the United Kingdom or any
British possession.
26
Assisting prisoners of war to escape
A person who intentionally aids an alien
enemy who is a prisoner of war to escape, or in his escape, from a prison or
place of confinement, or from the Commonwealth or a Territory not forming part
of the Commonwealth, shall be guilty of an indictable offence.
Penalty: Imprisonment for life.
27
Unlawful drilling
(1) Any person who:
(a) in contravention of the directions
of a proclamation by the Governor‑General in that behalf, trains or
drills any other person to the use of arms or the practice of military
exercises, movements, or evolutions; or
(b) is present at any meeting or
assembly of persons, held in contravention of the directions of a proclamation
by the Governor‑General, for the purpose of there training or drilling
any other person to the use of arms or the practice of military exercises,
movements, or evolutions;
shall be guilty of an indictable offence.
Penalty: Imprisonment for 5 years.
(2) Any person
who, at any meeting or assembly held in contravention of the directions of a
proclamation by the Governor‑General in that behalf, is trained or drilled
to the use of arms or the practice of military exercises, movements, or
evolutions, shall be guilty of an indictable offence.
Penalty: Imprisonment for 2 years.
28
Interfering with political liberty
Any person who, by violence or by
threats or intimidation of any kind, hinders or interferes with the free
exercise or performance, by any other person, of any political right or duty,
shall be guilty of an offence.
Penalty: Imprisonment for 3 years.
29
Destroying or damaging Commonwealth property
(1) Any person who intentionally destroys or
damages any property, whether real or personal, belonging to the Commonwealth
or to any public authority under the Commonwealth, shall be guilty of an
offence.
Penalty: Imprisonment for 10 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the physical element of circumstance of the
offence, that the property is property belonging to the Commonwealth or to any
public authority under the Commonwealth.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
Part IIA—Protection of the Constitution and of public and other
services
30A
Unlawful associations
(1) The following are hereby declared to be
unlawful associations, namely:
(a) any body of persons, incorporated
or unincorporated, which by its constitution or propaganda or otherwise
advocates or encourages:
(i) the overthrow of the
Constitution of the Commonwealth by revolution or sabotage;
(ii) the overthrow by force
or violence of the established government of the Commonwealth or of a State or
of any other civilized country or of organized government; or
(iii) the destruction or
injury of property of the Commonwealth or of property used in trade or commerce
with other countries or among the States;
or which is, or purports to be,
affiliated with any organization which advocates or encourages any of the
doctrines or practices specified in this paragraph;
(b) any body of persons, incorporated
or unincorporated, which by its constitution or propaganda or otherwise
advocates or encourages the doing of any act having or purporting to have as an
object the carrying out of a seditious intention (see subsection (3)).
(1A) Without limiting the effect of the
provisions of subsection (1), any body of persons, incorporated or
unincorporated, which is, in pursuance of section 30AA, declared by the
Federal Court of Australia to be an unlawful association, shall be deemed to be
an unlawful association for the purposes of this Act.
(2) Any branch or committee of an unlawful
association, and any institution or school conducted by or under the authority
or apparent authority of an unlawful association, shall, for all the purposes
of this Act, be deemed to be an unlawful association.
(3) In this section:
seditious intention means an intention to use
force or violence to effect any of the following purposes:
(a) to bring the Sovereign into hatred
or contempt;
(b) to urge disaffection against the
following:
(i) the Constitution;
(ii) the Government of the
Commonwealth;
(iii) either House of the
Parliament;
(c) to urge another person to attempt
to procure a change, otherwise than by lawful means, to any matter established
by law of the Commonwealth;
(d) to promote feelings of ill‑will
or hostility between different groups so as to threaten the peace, order and
good government of the Commonwealth.
30AA
Application for declaration as to unlawful association
(1) The Attorney‑General may apply to
the Federal Court of Australia for an order calling upon any body of persons,
incorporated or unincorporated, to show cause why it should not be declared to
be an unlawful association.
(2) An application under subsection (1):
(a) shall be made on the ground that
the body of persons to which it relates is one which is described in subsection
30A(1); and
(b) shall be by summons which may
contain averments setting out the facts relied upon in support of the
application.
(4) Service of a summons under this section
upon the body of persons specified in the summons may be effected by
publication of the summons in the Gazette and in a daily newspaper
circulating in the city or town in which the head office in Australia of that
body is stated in the summons to be situate, but the Court may order such
further or other service as it thinks fit.
(5) Any officer or member of the body of
persons specified in any summons issued under this section may appear on behalf
of that body to show cause.
(7) If cause to the contrary is not shown to
the satisfaction of the Court, it may make an order declaring the respondent
body of persons to be an unlawful association.
(8) Any person who is an interested person in
relation to any declaration made under this section may, within 14 days after
the making of any such declaration, apply to the Federal Court of Australia for
the setting aside of the order.
(9) Any application made under subsection (8)
shall be heard by a Full Court of the Federal Court of Australia, and upon the
hearing of the application the Court may affirm or annul the order.
30AB Attorney‑General
may require information
(1) If the Attorney‑General believes
that any person has in his possession any information or documents relating to
an unlawful association, he may require the person, or, in the case of a
corporation, any person holding a specified office in the corporation:
(a) to answer questions;
(b) to furnish information; and
(c) allow the inspection of documents
belonging to, or in the possession of, that person or that corporation, as the
case may be;
relating to:
(d) any money, property or funds
belonging to or held by or on behalf of an unlawful association, or as to which
there is reasonable cause to believe that they belong to or are held by or on
behalf of an unlawful association;
(e) any payments made directly or indirectly
by, to, or on behalf of, an unlawful association, or as to which there is
reasonable cause to believe that they are so made; or
(f) any transactions to which an
unlawful association is or is reasonably believed to be a party.
(2) Any person failing or neglecting to
answer questions, furnish information or produce documents as required in
pursuance of this section, shall be guilty of an offence.
Penalty: Imprisonment for 6 months.
30B
Officers of unlawful associations
Any
person over the age of 18 years who is a member of an unlawful association, and
any person who occupies or acts in any office or position in or of an unlawful
association, or who acts as a representative of an unlawful association, or who
acts as a teacher in any institution or school conducted by or under the
authority or apparent authority of an unlawful association, shall be guilty of
an offence.
Penalty: Imprisonment for 1 year.
30C
Advocating or inciting to crime
Any
person who by speech or writing advocates or encourages:
(a) the overthrow of the Constitution
of the Commonwealth by revolution or sabotage;
(b) the overthrow by force or violence
of the established government of the Commonwealth or of a State or of any other
civilized country or of organized government; or
(c) the
destruction or injury of property of the Commonwealth or of property used in
trade or commerce with other countries or among the States;
shall be guilty of an offence and shall be liable on
conviction to imprisonment for any period not exceeding 2 years.
30D
Giving or soliciting contributions for unlawful associations
(1) Any person who:
(a) gives or contributes money or
goods to an unlawful association; or
(b) receives or solicits subscriptions
or contributions of money or goods for an unlawful association;
shall be guilty of an offence.
Penalty: Imprisonment for 6 months.
(2) For the purposes of this section the
printer and the publisher of a newspaper or periodical which contains any
solicitation of subscriptions or contributions of money or goods for an
unlawful association, or any notification or indication as to places where or
persons to whom payment or delivery may be made of subscriptions or
contributions of money or goods for an unlawful association, shall be deemed to
solicit subscriptions or contributions of money or goods for an unlawful
association.
30E
Books etc. issued by unlawful association not transmissible by post
(1) No book, periodical, pamphlet, handbill,
poster or newspaper issued by or on behalf or in the interests of any unlawful
association shall:
(a) if posted in Australia, be
transmitted through the post; or
(b) in the case of a newspaper, be
registered as a newspaper under the provisions of the Postal Services Act
1975.
(2) Any newspaper registered under that Act,
which is issued by or on behalf or in the interests of any unlawful
association, shall be removed from the register.
(3) Any book, periodical, pamphlet, handbill,
poster or newspaper posted in Australia, the transmission of which would be a
contravention of this Act, shall be forfeited to the Commonwealth and shall be
destroyed or disposed of as provided in the regulations in force under the
Postal Services Act 1975.
30F
Prohibition of sale of books etc. issued by unlawful association
Any person who intentionally prints,
publishes, sells or exposes for sale or who intentionally circulates or
distributes any book, periodical, pamphlet, handbill, poster or newspaper for
or in the interests of or issued by any unlawful association shall be guilty of
an offence.
Penalty: Imprisonment for 6 months.
30FA
Imprints on publications
(1) The imprint appearing upon any book,
periodical, pamphlet, handbill, poster or newspaper shall, in any proceedings
under this Part, be prima facie evidence that the book, periodical, pamphlet,
handbill, poster or newspaper was printed or published by or on behalf of, or
in the interests of, the person or body of persons specified in the imprint.
(2) For the purposes of this section, imprint
means a statement of the name and address of the printer or of the publisher of
the book, periodical, pamphlet, handbill, poster or newspaper with or without a
description of the place where it is printed.
30FC
Owner etc. of building permitting meeting of unlawful association
Any person who, being the owner, lessee,
agent or superintendent of any building, room, premises or place, intentionally
permits therein any meeting of an unlawful association or of any branch or
committee thereof, shall be guilty of an offence.
Penalty: Imprisonment for 6 months.
30FD
Disqualification from voting of member of unlawful association
Any person who, at the date of any
declaration made by a court under this Part declaring any body of persons to be
an unlawful association, is a member of the Committee or Executive of that
association, shall not for a period of 7 years from that date be entitled to
have his name placed on or retained on any roll of electors for the Senate or
House of Representatives, or to vote at any Senate election or House of Representatives
election unless so entitled under section 41 of the Constitution.
30G
Forfeiture of property held by an unlawful association
All goods and chattels belonging to an
unlawful association, or held by any person for or on behalf of an unlawful
association, and all books, periodicals, pamphlets, handbills, posters or
newspapers issued by or on behalf of, or in the interests of, an unlawful
association shall be forfeited to the Commonwealth.
30H
Proof of membership of an association
In any prosecution under this Act, proof
that the defendant has, at any time since the commencement of this section:
(a) been a member of an association;
(b) attended a meeting of an
association;
(c) spoken publicly in advocacy of an
association or its objects; or
(d) distributed
literature of an association;
shall, in the absence of proof to the contrary, be
evidence that at all times material to the case he was a member of the
association.
30J
Industrial disturbances, lock‑outs and strikes
(1) If at any time the Governor‑General
is of opinion that there exists in Australia a serious industrial disturbance
prejudicing or threatening trade or commerce with other countries or among the
States, he may make a Proclamation to that effect, which Proclamation shall be
and remain in operation for the purposes of this section until it is revoked.
(2) Any person
who, during the operation of such Proclamation, takes part in or continues, or
incites to, urges, aids or encourages the taking part in, or continuance of, a
lock‑out or strike:
(a) in relation to employment in or in
connexion with the transport of goods or the conveyance of passengers in trade
or commerce with other countries or among the States; or
(b) in relation to employment in, or
in connexion with, the provision of any public service by the Commonwealth or
by any Department or public authority under the Commonwealth;
shall be guilty of an offence, and shall be liable on
conviction to imprisonment for any period not exceeding one year.
(3) For the purposes of this section:
employee includes any person whose usual
occupation is as an employee.
employer includes any person whose usual
occupation is as an employer.
lock‑out includes the closing of a
place or part of a place of employment, if the closing is unreasonable, and the
total or partial refusal of employers, acting in combination, to give work, if
the refusal is unreasonable, or the total or partial suspension of work by an
employer, if the suspension is unreasonable, with a view to compel his
employees, or to aid another employer in compelling his employees, to accept
any term or condition of employment.
strike includes the total or partial
cessation of work by employees, acting in combination, if the cessation is
unreasonable, as a means of enforcing compliance with demands made by them or
by other employees on employers, and the total or partial refusal of employees,
acting in combination, to accept work, if the refusal is unreasonable, and also
includes job control.
30K
Obstructing or hindering the performance of services
Whoever, by violence to the person or
property of another person, or by spoken or written threat or intimidation of
any kind to whomsoever directed, or, without reasonable cause or excuse, by
boycott or threat of boycott of person or property:
(b) compels or induces any person
employed in or in connexion with the provision of any public service by the
Commonwealth or by any Department or public authority under the Commonwealth to
surrender or depart from his employment;
(c) prevents any person from offering
or accepting employment in or in connexion with the provision of any public
service by the Commonwealth or by any Department or public authority under the
Commonwealth;
(d) obstructs or hinders the transport
of goods or the conveyance of passengers in trade or commerce with other
countries or among the States;
(e) compels or induces any person
employed in or in connexion with the transport of goods or the conveyance of
passengers in trade or commerce with other countries or among the States to
surrender or depart from his employment; or
(f) prevents
any person from offering or accepting employment in or in connexion with the
transport of goods or the conveyance of passengers in trade or commerce with
other countries or among the States;
shall be guilty of an offence.
Penalty: Imprisonment for 1 year.
30R
Books etc. taken to have been issued by associations
(5) Any book,
periodical, pamphlet, handbill, poster or newspaper purporting to be issued by
or on behalf of, or in the interests of, an association shall, unless the
contrary is proved, be deemed to be so issued.
Part III—Offences relating to the administration of justice
31
Interpretation
In this Part, unless the contrary
intention appears:
holder of a judicial office means the holder
of a judicial office under the Commonwealth, or the holder of a judicial office
acting in the exercise of federal jurisdiction, and includes an arbitrator or
umpire under any law of the Commonwealth or of a Territory.
judicial proceeding means a proceeding
in or before a federal court, court exercising federal jurisdiction or court of
a Territory, and includes a proceeding before a body or person acting under the
law of the Commonwealth, or of a Territory, in which evidence may be taken on oath.
34
Judge or magistrate acting oppressively or when interested
(1) Any person who:
(a) being a judge or magistrate and
being required or authorized by law to admit any person accused of an offence
against the law of the Commonwealth to bail, in abuse of his office, requires
excessive and unreasonable bail; or
(b) being
a judge or magistrate, intentionally and perversely exercises federal
jurisdiction in any matter in which he has a personal interest;
shall be guilty of an
offence.
Penalty: Imprisonment for 2 years.
(2) Paragraph (1)(a) does not apply if
the judge or magistrate has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
35
Giving false testimony
(1) Any person who, in any judicial
proceeding, or with the intention of instituting any judicial proceeding,
intentionally gives false testimony touching any matter, material in that
proceeding, shall be guilty of an indictable offence.
Penalty: Imprisonment for 5 years.
(1A) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of circumstance of the
offence, that the matter is material in the proceeding.
Note: For strict liability, see section 6.1
of the Criminal Code.
(2) For the purpose of this section it is
immaterial whether the testimony was given on oath or not on oath, or was given
orally or in writing, or whether the court or tribunal to which it was given
was properly constituted or was held in the proper place, or whether the person
who gave the testimony was a competent witness or not, or whether the testimony
was admissible or not.
36
Fabricating evidence
Any person who, with intent to mislead
any tribunal in any judicial proceeding, intentionally:
(a) fabricates evidence; or
(b) makes use of fabricated evidence;
shall be guilty of an offence.
Penalty: Imprisonment for 5 years.
36A
Intimidation of witnesses etc.
A person who:
(a) threatens, intimidates or
restrains;
(b) uses violence to or inflicts an
injury on;
(c) causes or procures violence,
damage, loss or disadvantage to; or
(d) causes
or procures the punishment of;
a person for or on account of his having appeared, or
being about to appear, as a witness in a judicial proceeding shall be guilty of
an indictable offence.
Penalty: Imprisonment for 5 years.
37
Corruption of witnesses
Any person who:
(a) gives, confers, or procures, or
promises or offers to give, confer, procure or attempt to procure, any property
or benefit of any kind to, upon, or for, any person, upon any agreement or
understanding that any person called or to be called as a witness in any
judicial proceeding shall give false testimony or withhold true testimony; or
(b) does an act with the intention of
inducing a person called or to be called as a witness in any judicial
proceeding to give false testimony, or to withhold true testimony; or
(c) asks,
receives, or obtains, or agrees to receive or obtain, any property or benefit
of any kind for himself, or any other person, upon any agreement or
understanding that any person shall as a witness in any judicial proceeding
give false testimony or withhold true testimony;
shall be guilty of an
indictable offence.
Penalty: Imprisonment for 5 years.
38 Deceiving
witnesses
Any
person who practices any fraud or deceit, or intentionally makes or exhibits
any false statement, representation, token, or writing, to any person called or
to be called as a witness in any judicial proceeding, with intent to affect the
testimony of that person as a witness, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
39
Destroying evidence
Any person who, knowing that any book,
document, or other thing of any kind, is or may be required in evidence in a
judicial proceeding, intentionally destroys it or renders it illegible or
undecipherable or incapable of identification, with intent thereby to prevent
it from being used in evidence, shall be guilty of an offence.
Penalty: Imprisonment for 5 years.
40
Preventing witnesses from attending Court
A person
who intentionally prevents another person who has been summoned to attend as a
witness in a judicial proceeding from attending as a witness or from producing
anything in evidence pursuant to the subpoena or summons shall be guilty of an
offence.
Penalty: Imprisonment for 1 year.
41
Conspiracy to bring false accusation
(1) Any person
who conspires with another to charge any person falsely or cause any person to
be falsely charged with any offence against the law of the Commonwealth or of a
Territory, shall be guilty of an indictable offence.
Penalty: Imprisonment for 10 years.
(2) For a person to be guilty of an offence
against subsection (1):
(a) the person must have entered into
an agreement with one or more other persons; and
(b) the person and at least one other
party to the agreement must have intended that a person be charged falsely with
an offence pursuant to the agreement; and
(c) the person or at least one other
party to the agreement must have committed an overt act pursuant to the
agreement.
(3) A person may be found guilty of an
offence against subsection (1) even if:
(a) charging a person falsely pursuant
to the agreement is impossible; or
(b) the only other party to the
agreement is a body corporate; or
(c) each other party to the agreement
is a person who is not criminally responsible; or
(d) subject to subsection (4),
all other parties to the agreement have been acquitted of the offence.
(4) A person
cannot be found guilty of an offence against subsection (1) if:
(a) all other parties to the agreement
have been acquitted of such an offence; and
(b) a finding of guilt would be
inconsistent with their acquittal.
(5) A person cannot be found guilty of an
offence against subsection (1) if, before the commission of an overt act
pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to
prevent the false charging.
(6) A court may dismiss a charge of an
offence against subsection (1) if the court thinks that the interests of
justice require the court to do so.
(7) Section 11.1 of the Criminal Code
does not apply to an offence against subsection (1).
42
Conspiracy to defeat justice
(1) Any person
who conspires with another to obstruct, prevent, pervert, or defeat, the course
of justice in relation to the judicial power of the Commonwealth, shall be
guilty of an indictable offence.
Penalty: Imprisonment for 5 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the physical element of circumstance of the
offence, that the judicial power is of the Commonwealth.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(3) For a person to be guilty of an offence
against subsection (1):
(a) the person must have entered into
an agreement with one or more other persons; and
(b) the person and at least one other
party to the agreement must have intended to obstruct, prevent, pervert or
defeat the course of justice pursuant to the agreement; and
(c) the person or at least one other
party to the agreement must have committed an overt act pursuant to the
agreement.
(4) A person may be found guilty of an
offence against subsection (1) even if:
(a) obstructing, preventing,
perverting or defeating the course of justice pursuant to the agreement is
impossible; or
(b) the only other party to the
agreement is a body corporate; or
(c) each other party to the agreement
is a person who is not criminally responsible; or
(d) subject to subsection (5),
all other parties to the agreement have been acquitted of the offence.
(5) A person cannot be found guilty of an
offence against subsection (1) if:
(a) all other parties to the agreement
have been acquitted of such an offence; and
(b) a finding of guilt would be
inconsistent with their acquittal.
(6) A person cannot be found guilty of an
offence against subsection (1) if, before the commission of an overt act
pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to
prevent the obstruction, prevention, perversion or defeat.
(7) A court may dismiss a charge of an
offence against subsection (1) if the court thinks that the interests of
justice require the court to do so.
(8) Section 11.1 of the Criminal Code
does not apply to an offence against subsection (1).
43
Attempting to pervert justice
(1) Any person
who attempts, in any way not specially defined in this Act, to obstruct,
prevent, pervert, or defeat, the course of justice in relation to the judicial
power of the Commonwealth, shall be guilty of an offence.
Penalty: Imprisonment for 5 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the physical element of circumstance of the
offence, that the judicial power is of the Commonwealth.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(3) For the person to be guilty of an offence
against subsection (1), the person’s conduct must be more than merely
preparatory to the commission of the offence. The question whether conduct is
more than merely preparatory to the commission of the offence is one of fact.
(4) A person may be found guilty of an
offence against subsection (1) even if doing the thing attempted is
impossible.
44
Compounding offences
Any person who asks receives or obtains,
or agrees to receive or obtain, any property or benefit of any kind for himself
or any other person, upon any agreement or understanding that he will compound
or conceal any indictable offence against the law of the Commonwealth or a
Territory, or will abstain from, discontinue, or delay any prosecution for any
such offence, or will withhold any evidence thereof, shall be guilty of an
offence.
Penalty: Imprisonment for 3 years.
45
Inserting advertisements without authority of Court
Any person who, without authority, or
knowing the advertisement to be false in any material particular, inserts in
the Gazette or in any newspaper an advertisement purporting to be
published under the authority of any federal court, any court in the exercise
of federal jurisdiction or any court of a Territory, shall be guilty of an
offence.
Penalty: Imprisonment for 2 years.
46
Aiding prisoner to escape
(1) Any person who:
(a) aids a person in escaping, or
attempting to escape, from lawful custody in respect of any offence against the
law of the Commonwealth or of a Territory;
(aa) aids a person who has been
lawfully arrested in respect of any offence against a law of the Commonwealth
or of a Territory to escape, or to attempt to escape, from that arrest;
(ab) aids a person who is lawfully
detained under Division 6 or 7 of Part IB or section 20BS in respect
of any offence against the law of the Commonwealth or of a Territory to escape,
or to attempt to escape, from that detention; or
(b) conveys
anything into a prison, lock‑up or other place of lawful detention with
intent to facilitate the escape therefrom of a prisoner who is in custody in
respect of an offence against the law of the Commonwealth or of a Territory;
shall be guilty of an
indictable offence.
Penalty: Imprisonment for 5 years.
(1A) For a person to be guilty of an offence
against paragraph (1)(a), (aa) or (ab):
(a) the person’s conduct must have in
fact aided the escape or attempted escape by the person in custody, under
arrest or in detention (the escapee); and
(b) the escapee must have actually
escaped or attempted to escape.
(1B) For a person to be guilty of an offence
against paragraph (1)(a), (aa) or (ab), the person must have intended that
his or her conduct would aid the escape or attempted escape by the escapee.
(1C) A person cannot be found guilty of an
offence against paragraph (1)(a), (aa) or (ab) if, before the escape or
attempted escape, the person:
(a) terminated his or her aid to the
escapee; and
(b) took all reasonable steps to
prevent the escape or attempted escape.
(1D) A person may be found guilty of an offence
against paragraph (1)(a), (aa) or (ab) even if the escapee has not been
prosecuted, or has not been found guilty of an offence, in relation to the
escape or attempted escape.
(2) In this
section:
Territory does not include the Australian
Capital Territory.
47
Escaping
A person who has been lawfully arrested,
is in lawful custody, or is lawfully detained under Division 6 or 7 of Part
IB or section 20BS, in respect of any offence against a law of the
Commonwealth or of a Territory (other than the Australian Capital Territory)
and who escapes from that arrest, custody or detention is guilty of an offence.
Penalty: Imprisonment for 5 years.
47A
Rescuing a prisoner from custody etc.
(1) A person who:
(a) rescues by force a person (other
than a person referred to in paragraph (c) or (d)) from lawful custody in
respect of any offence against a law of the Commonwealth or of a Territory with
which the person has been charged;
(b) rescues by force a person who has
been lawfully arrested in respect of any offence against a law of the
Commonwealth or of a Territory with which the person has not been charged;
(c) rescues by force a prisoner who is
in lawful custody in any prison, lock‑up or other place of lawful
detention in respect of any offence against a law of the Commonwealth or of a
Territory from that prison, lock‑up or place; or
(d) rescues
by force a person who is lawfully detained under Division 6 or 7 of Part IB
or section 20BS in respect of any offence against a law of the
Commonwealth or of a Territory from that detention;
is guilty of an offence.
Penalty: Imprisonment for 14 years.
(2) In this section:
Territory does not include the Australian
Capital Territory.
47B
Person unlawfully at large
(1) A person who:
(a) in accordance with a permission
given under a law of a State or Territory, leaves a prison, lock‑up or
other place of lawful detention where the person is in custody, or is detained
under Division 6 or 7 of Part IB or section 20BS, in respect of any
offence against a law of the Commonwealth or of a Territory; and
(b) refuses or fails to return to that
prison, lock‑up or other place in accordance with that permission;
is guilty of an offence.
Penalty: Imprisonment for 5 years.
(1A) Paragraph (1)(b) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(2) In this section:
Territory does not include the Australian
Capital Territory.
47C
Permitting escape
(1A) In this section:
Territory does not include the Australian
Capital Territory.
(1) A person
who:
(a) is an officer of a prison, lock‑up
or other place of lawful detention, a constable or a Commonwealth officer;
(b) is charged for the time being with
the custody or detention of another person (including a person detained under
Division 6 or 7 of Part IB or section 20BS) in respect of any offence
against a law of the Commonwealth or of a Territory; and
(c) intentionally or negligently
permits the other person to escape from that custody or detention;
is guilty of an offence.
(2) A constable or a Commonwealth officer,
who intentionally or negligently permits a person who has been lawfully
arrested in respect of any offence against a law of the Commonwealth or of a
Territory to escape from that arrest, is guilty of an offence.
Penalty: Imprisonment for 5 years.
48
Harbouring etc. an escapee
A person who harbours, maintains or
employs another person knowing the other person to have escaped from a place
where the person is held in lawful custody or detention in respect of any
offence against a law of the Commonwealth or of a Territory (other than the
Australian Capital Territory) is guilty of an offence.
Penalty: Imprisonment for 5 years.
48A
Sentence ceases to run while escaped prisoner at large
(1) A person who commits an offence against
section 47 or 47B shall, upon being returned to lawful custody, undergo,
in addition to any punishment imposed for that offence, the punishment that the
person would have undergone if the person had not escaped.
(2) If a person who is undergoing punishment
for an offence against a law of the Commonwealth or of a Territory commits an
offence against a law of a State or Territory that corresponds to section 47
or 47B, the person is, upon being returned to lawful custody, to undergo (in
addition to any punishment imposed for the corresponding offence and any other
punishment that the person is required to undergo under the law of the State or
Territory) the punishment that the person would have undergone for the first‑mentioned
offence if the person had not escaped.
49
Removing property under seizure
Any
person who, when any property has been attached or taken under the process or
authority of any federal court, court acting in the exercise of federal
jurisdiction or any court of a Territory, intentionally receives, removes,
retains, conceals or disposes of the property, with intent to hinder or defeat
the attachment or process, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
Part IIIA—Child sex tourism
Division 1—Preliminary
50AA
General
(1) In this Part:
act of indecency has the meaning given by
section 50AB.
Australia includes the external Territories.
induce means induce by threats, promises or
otherwise.
offence, in the case of a reference to an
offence against this Part or against a particular provision of it, has a meaning
affected by subsections (2) and (3) of this section.
sexual intercourse has the meaning given by
section 50AC.
vagina includes:
(a) any part of a female person’s
genitalia; and
(b) a surgically constructed vagina.
(2) A reference in this Part (except section 50DB)
to an offence against this Part or against a particular provision of it
includes:
(a) a reference to:
(i) an offence against
section 6 or 50DB; or
(ii) an offence against
section 11.1 or 11.5 of the Criminal Code;
that relates to an offence
against this Part or against that provision of it; and
(b) a reference to an offence against
this Part, or against that provision of it, because of section 11.2 or
11.3 of the Criminal Code.
(3) A reference in section 50DB to an
offence against this Part or against a particular provision of it does not
include a reference to such an offence because of section 11.2 of the Criminal
Code.
(4) Section 11.4 of the Criminal Code
does not apply to an offence against this Part.
(5) Section 11.5 of the Criminal Code
does not apply to an offence against section 50DB.
50AB
Meaning of act of indecency
(1) In this
Part:
act of indecency
means an act that:
(a) is of a sexual nature; and
(b) involves the human body, or bodily
actions or functions; and
(c) is so unbecoming or offensive that
it amounts to a gross breach of ordinary contemporary standards of decency and
propriety in the Australian community.
(2) To avoid doubt, act of indecency
includes an indecent assault.
50AC
Meaning of sexual intercourse
(1) In this Part:
sexual intercourse means:
(a) the penetration, to any extent, of
the vagina or anus of a person by any part of the body of another person; or
(b) the penetration, to any extent, of
the vagina or anus of a person, carried out by another person by an object; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity
mentioned in paragraph (a), (b), (c) or (d).
(2) Paragraph (1)(a) or (b) does not
apply to an act of penetration if:
(a) it is carried out for a proper medical
or hygienic purpose; or
(b) it is carried out for a proper law
enforcement purpose.
50AD
Who can be prosecuted for an offence committed overseas
A person must not be charged with an
offence against this Part that the person allegedly committed outside Australia
unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by
or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that
carries on its activities principally in Australia.
Division 2—Sexual offences against children overseas
50BA
Sexual intercourse with child under 16
(1) A person must not, while outside Australia,
engage in sexual intercourse with a person who is under 16.
Penalty: Imprisonment for 17 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the following physical elements of circumstance
of the offence:
(a) that the sexual intercourse is
engaged in outside Australia;
(b) that the person referred to in
that subsection as being under 16 is in fact under 16.
Note 1: For absolute liability, see
section 6.2 of the Criminal Code.
Note 2: For a defence based on belief about age, see
section 50CA.
50BB Inducing
child under 16 to engage in sexual intercourse
(1) A person must not induce a person who is
under 16 to engage in sexual intercourse with a third person outside Australia
and in the presence of the first‑mentioned person.
Penalty: Imprisonment for 17 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the following physical elements of circumstance
of the offence:
(a) that the sexual intercourse is
engaged in outside Australia;
(b) that the person referred to in
that subsection as being under 16 is in fact under 16.
Note 1: For absolute liability, see
section 6.2 of the Criminal Code.
Note 2: For a defence based on belief about age, see
section 50CA.
50BC
Sexual conduct involving child under 16
(1) A person (the first person)
contravenes this section if, while the first person is outside Australia:
(a) the first person commits an act of
indecency on a person who is under 16; or
(b) the first person submits to an act
of indecency committed by a person who is under 16; or
(c) the first person commits an act of
indecency in the presence of a person who is under 16 (the child),
and the first person intends to derive gratification from the child’s presence
during the act; or
(d) the first person submits to an act
of indecency committed in the presence of a person who is under 16 (the
child), and the first person intends to derive gratification from the
child’s presence during the act; or
(e) the
first person engages in sexual intercourse with another person in the presence
of a person who is under 16 (the child), and the first person
intends to derive gratification from the child’s presence during the sexual
intercourse.
Penalty: Imprisonment for 12 years.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to such of the following physical elements of
circumstance as are relevant to the offence:
(a) that the first person is outside Australia;
(b) that the person referred to in
that subsection as being under 16 is in fact under 16;
(c) in the case of an offence against paragraph (1)(a),
(b), (c) or (d)—that the act of indecency referred to in that paragraph is in
fact an act of indecency.
Note 1: For absolute liability, see
section 6.2 of the Criminal Code.
Note 2: For a defence based on belief about age, see
section 50CA.
50BD
Inducing child under 16 to be involved in sexual conduct
(1) A person (the
first person) must not induce a person who is under 16 to commit, to
submit to, or to be present while a third person commits, an act of indecency
that:
(a) is committed outside Australia and
in the presence of the first person; and
(b) is
not committed by or on the first person.
Penalty: Imprisonment for 12 years.
(1A) For the purposes of an offence against subsection (1),
absolute liability applies to the following physical elements of circumstance
of the offence:
(a) that the act of indecency is
committed outside Australia;
(b) that the person referred to in
that subsection as being under 16 is in fact under 16;
(c) that the act of indecency referred
to in that subsection is in fact an act of indecency.
Note 1: For absolute liability, see
section 6.2 of the Criminal Code.
Note 2: For a defence based on belief about age, see
section 50CA.
(2) A person (the
first person) must not induce a person who is under 16 to be present
while a third person engages in sexual intercourse with a fourth person outside
Australia and in the presence of the first person.
Penalty: Imprisonment for 12 years.
(3) For the purposes of an offence against subsection (2),
absolute liability applies to the following physical elements of circumstance
of the offence:
(a) that the sexual intercourse is
engaged in outside Australia;
(b) that the person referred to in
that subsection as being under 16 is in fact under 16.
Note 1: For absolute liability, see
section 6.2 of the Criminal Code.
Note 2: For a defence based on belief about age, see
section 50CA.
Division 3—Defences
50CA
Defence based on belief about age
It is a defence to a prosecution for an
offence against Division 2 that the defendant believed at the time of the
sexual intercourse or act of indecency that the person in relation to whom the
offence was allegedly committed was 16 or over.
Note: A defendant bears an evidential burden in
relation to the matter in this section (see subsection 13.3(3) of the Criminal
Code).
50CB
Defence based on valid and genuine marriage
It is a defence to a prosecution for an
offence against Division 2 that:
(a) at the time of the sexual
intercourse or act of indecency, there existed between the defendant and the
person in relation to whom the offence was allegedly committed a marriage that
was valid, or recognised as valid, under the law of:
(i) the place where the
marriage was solemnised; or
(ii) the place where the
offence was allegedly committed; or
(iii) the place of the
defendant’s residence or domicile; and
(b) when it was solemnised, the
marriage was genuine.
Note: A defendant bears an evidential burden in
relation to the matters in this section (see subsection 13.3(3) of the Criminal
Code).
50CC
Defence must be proved on balance of probabilities
A defence under this Division must be
proved on the balance of probabilities.
50CD
Jury may consider reasonableness of alleged belief
In determining whether the defendant
believed as mentioned in section 50CA, the jury may take into account
whether the alleged belief was reasonable in the circumstances.
Division 4—Offences of benefiting from, or encouraging, offences against
this Part
50DA
Benefiting from offence against this Part
(1) A person contravenes this section if:
(a) the person does an act, or makes
an omission, whether within or outside Australia, with the intention of
benefiting, whether financially or not, from conduct of a kind that would
constitute an offence against this Part; and
(b) the act or omission is reasonably
capable of resulting in the person benefiting from such conduct;
whether or not that conduct in fact occurs or has
occurred.
Penalty: Imprisonment for 17 years.
(1A) Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(1B) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the conduct mentioned
in paragraph (1)(a) would be of a kind that would constitute an offence
against this Part.
(2) An example of an act covered by paragraph (1)(b)
is profiting from an arrangement that facilitates an offence against this Part.
50DB
Encouraging offence against this Part
(1) A person contravenes this section if:
(a) the person does an act, or makes
an omission, whether within or outside Australia, with the intention of
encouraging conduct of a kind that would constitute an offence against this Part
(other than this section); and
(b) the act or omission is reasonably
capable of encouraging such conduct;
whether or not that conduct in fact occurs.
Penalty: Imprisonment for 17 years.
(1A) Absolute
liability applies to paragraph (1)(b).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(1B) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the conduct mentioned
in paragraph (1)(a) would be of a kind that would constitute an offence
against this Part (other than this section).
(2) In this section:
encourage means:
(a) encourage, incite to, or urge, by
any means whatever, for example, by written, electronic or other form of
communication; or
(b) aid, facilitate, or contribute to,
in any way whatever.
(3) These are examples of acts covered by paragraph (1)(b):
(a) organising an arrangement that
facilitates an offence against this Part (other than this section);
(b) assisting a person to travel
outside Australia in order to commit an act that would constitute an offence
against Division 2;
(c) advertising an offer so to assist
a person or an arrangement for so assisting a person.
Division 5—Video link evidence
50EA
When court may take evidence by video link
In a proceeding for an offence against
this Part, the court may direct that a witness give evidence by video link if:
(a) the witness will give the evidence
from outside Australia; and
(b) the witness is not a defendant in
the proceeding; and
(c) the facilities required by section 50EC
are available or can reasonably be made available; and
(d) the court is satisfied that
attendance of the witness at the court to give the evidence would:
(i) cause unreasonable
expense or inconvenience; or
(ii) cause the witness
psychological harm or unreasonable distress; or
(iii) cause the witness to
become so intimidated or distressed that his or her reliability as a witness
would be significantly reduced; and
(e) the court is satisfied that it is
consistent with the interests of justice that the evidence be taken by video
link.
50EB
Motion of parties
A direction can only be made on
application by a party to the proceeding.
50EC
Technical requirements for video link
(1) A witness can give evidence under a
direction only if:
(a) the courtroom or other place in Australia
where the court is sitting (the Australian point); and
(b) the place where the evidence is
given (the overseas point);
are equipped with video facilities that:
(c) enable appropriate persons at the
Australian point to see and hear the witness give the evidence; and
(d) enable appropriate persons at the
overseas point to see and hear appropriate persons at the Australian point.
(2) In subsection (1):
appropriate persons means such persons as the
court considers appropriate.
50ED
Application of laws about witnesses
(1) A person who gives evidence under a
direction is taken to give it at the courtroom or other place in Australia
where the court is sitting.
(2) Subsection (1) has effect, for
example, for the purposes of laws relating to evidence, procedure, contempt of
court and perjury.
50EE
Administration of oaths and affirmations
An oath or affirmation to be sworn or
made by a witness who is to give evidence under a direction may be administered
either:
(a) by means of the video link, in as
nearly as practicable the same way as if the witness were to give the evidence
at the courtroom or other place in Australia where the court is sitting; or
(b) as follows:
(i) on behalf of the court
and as directed by it;
(ii) by a person (whether
an Australian official or not) authorised by the court;
(iii) at the place where the
witness is to give the evidence.
50EF
Expenses
A court may make such orders as are just
for payment of expenses incurred in connection with giving evidence under a
direction by the court under this Division.
50EG
Other laws about foreign evidence not affected
This Division does not prevent any other
law about taking evidence of a witness outside Australia from applying for the purposes
of a proceeding for an offence against this Part.
Division 6—Other rules about conduct of trials
50FA
Certain material taken to be evidence of age
(1) In determining for the purposes of this
Part whether a person is under 16, or was under 16 at a particular time, or how
old a person is or was at a particular time, a jury or court may treat any of
the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific
opinion;
(c) a document that is or appears to
be an official or medical record from a country outside Australia;
(d) a document that is or appears to
be a copy of such a record.
(2) This section does not make any other kind
of evidence inadmissible, and does not affect a prosecutor’s duty to do all he
or she can to adduce the best possible evidence for determining the question.
(3) If, on a trial for an offence against
this Part, evidence may be treated as admissible because of subsection (1),
the court must warn the jury that it must be satisfied beyond reasonable doubt
in determining the question.
50FB
Alternative verdicts
(1) If, on a trial for an offence against
section 50BA, the jury is not satisfied that the defendant is guilty of
the offence, but is satisfied that he or she is guilty of an offence against
section 50BC, it may find the defendant not guilty of the offence against
section 50BA but guilty of the offence against section 50BC.
(2) If, on a trial for an offence against
section 50BB, the jury is not satisfied that the defendant is guilty of
the offence, but is satisfied that he or she is guilty of an offence against
subsection 50BD(1), it may find the defendant not guilty of the offence against
section 50BB but guilty of the offence against subsection 50BD(1).
50FC
Double jeopardy
If a person has been convicted or
acquitted in a country outside Australia of an offence against the law of that
country in respect of any conduct, the person cannot be convicted of an offence
against this Part in respect of that conduct.
50FD
Sentencing
(1) In determining the sentence to be passed,
or the order to be made, in respect of a person for an offence against Division 2,
the court must take into account the age and maturity of the person in relation
to whom the offence was committed, so far as these matters are relevant and
known to the court.
(2) The matters mentioned in subsection (1)
are in addition to any other matters the court must take into account, for
example, the matters mentioned in subsection 16A(2).
Division 7—Saving of other laws
50GA
Saving of other laws
This Part is not intended to exclude or
limit the operation of any other law of the Commonwealth or any law of a State
or Territory.
Part IV—Piracy
51
Interpretation
In this Part:
act of piracy means an act of violence,
detention or depredation committed for private ends by the crew or passengers
of a private ship or aircraft and directed:
(a) if the act is done on the high
seas or in the coastal sea of Australia—against another ship or aircraft or
against persons or property on board another ship or aircraft; or
(b) if the act is done in a place
beyond the jurisdiction of any country—against a ship, aircraft, persons or
property.
Australia includes the External Territories.
coastal sea of Australia means:
(a) the territorial sea of Australia;
and
(b) the sea on the landward side of
the territorial sea of Australia and not within the limits of a State or
Territory;
and includes airspace over those seas.
high seas means seas that are beyond the
territorial sea of Australia and of any foreign country and includes the
airspace over those seas.
offence against this Part includes:
(a) an offence against a provision of
this Part because of section 5; and
(b) an offence against section 6,
7 or 7A that relates to an offence against a provision of this Part; and
(c) an offence against subsection
86(1) because of paragraph (a) of that subsection, being an offence that
relates to an offence against a provision of this Part.
pirate‑controlled
ship or aircraft means a private ship or aircraft which is under the
control of persons that:
(a) have used, are using or intend to
use the ship or aircraft in the commission of acts of piracy; or
(b) have seized control of the ship or
aircraft by an act of piracy.
place beyond the jurisdiction of any country
means a place, other than the high seas, that is not within the territorial
jurisdiction of Australia or of any foreign country.
private ship or aircraft means a ship or
aircraft that is not being operated for naval, military, customs or law
enforcement purposes by Australia or by a foreign country, and includes a ship
or aircraft that has been taken over by its crew or passengers.
ship means a vessel of any type not
permanently attached to the sea‑bed, and includes any dynamically supported
craft, submersible, or any other floating craft, other than a vessel that has
been withdrawn from navigation or is laid up.
52
Piracy
A person must not perform an act of
piracy.
Penalty: Imprisonment for life.
53
Operating a pirate‑controlled ship or aircraft
(1) A person must not voluntarily participate
in the operation of a pirate‑controlled ship or aircraft knowing that it
is such a ship or aircraft.
Penalty: Imprisonment for 15 years.
(2) This section applies to acts performed on
the high seas, in places beyond the jurisdiction of any country or in Australia.
54
Seizure of pirate ships and aircraft etc.
(1) A member
of the Defence Force or a member of the Australian Federal Police may seize:
(a) a ship or aircraft that he or she
reasonably believes to be a pirate‑controlled ship or aircraft; or
(b) a thing on board such a ship or
aircraft, being a thing that appears to be connected with the commission of an
offence against this Part.
(2) A seizure
may be effected:
(a) in Australia; or
(b) on the high seas; or
(c) in a place beyond the jurisdiction
of any country.
(3) The Supreme Court of a State or Territory
may:
(a) on the application by the
custodian of, or a person with an interest in, a ship, aircraft or thing seized
under this section, order that the ship, aircraft or thing be returned to its
lawful owner; or
(b) on
its own motion, or on application:
(i) if:
(A) a person
has been convicted of an offence against this Part; and
(B) the
ship, aircraft or thing was used in, or was otherwise involved in the
commission of, the offence;
order that the ship,
aircraft or thing be forfeited to the Commonwealth; or
(ii) make any order
relating to the seizure, detention or disposal of the ship, aircraft or thing.
(4) An order to return a ship, aircraft or
thing may be made subject to conditions, including conditions as to the payment
to the Commonwealth of reasonable costs of seizure and detention and conditions
as to the giving of security for payment of its value should it be forfeited.
55
Written consent of Attorney‑General required
(1) A prosecution for an offence against this
Part requires the consent of the Attorney‑General.
(2) Despite subsection (1):
(a) a person may be arrested for an
offence referred to in subsection (1), and a warrant for such an arrest
may be issued and executed; and
(b) a person may be charged with such
an offence; and
(c) a person so charged may be
remanded in custody or on bail;
but no further step in the proceedings referred to in subsection (1)
is to be taken until the Attorney‑General’s consent has been given.
(3) Nothing in subsection (2) prevents
the discharge of the accused if proceedings are not continued within a
reasonable time.
56
Evidence of certain matters
(1) A certificate by the Minister for Foreign
Affairs and Trade, or by an eligible person authorised by that Minister to make
such a certificate, stating that:
(a) specified waters were, at a
specified time:
(i) part of the high seas;
or
(ii) within
the coastal sea of Australia; or
(b) a
specified place was, at a specified time, a place beyond the jurisdiction of
any country;
is, for the purposes of any proceedings for an offence
against this Part, evidence of the facts stated in the certificate.
(2) In this section:
eligible person means an SES employee in the
Department of Foreign Affairs and Trade.
Part VI—Offences by and against public officers
70
Disclosure of information by Commonwealth officers
(1) A person who, being a Commonwealth
officer, publishes or communicates, except to some person to whom he is
authorized to publish or communicate it, any fact or document which comes to
his knowledge, or into his possession, by virtue of being a Commonwealth
officer, and which it is his duty not to disclose, shall be guilty of an
offence.
(2) A person who, having been a Commonwealth
officer, publishes or communicates, without lawful authority or excuse (proof
whereof shall lie upon him), any fact or document which came to his knowledge,
or into his possession, by virtue of having been a Commonwealth officer, and
which, at the time when he ceased to be a Commonwealth officer, it was his duty
not to disclose, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
Part VII—Official secrets and unlawful soundings
77 Interpretation
(1) In this Part, unless the contrary
intention appears:
article includes any thing, substance or
material.
cipher includes:
(a) a code or cryptogram;
(b) a system, method, device or
machine whereby a cipher, code or cryptogram may be created; and
(c) a code word, password or
identification signal.
information means information of any kind
whatsoever, whether true or false and whether in a material form or not, and
includes:
(a) an opinion; and
(b) a report of a conversation.
model includes design, pattern and specimen.
plan includes a written record of a survey or
of a bearing or measurement taken for the purpose of fixing the position of a
place.
sketch includes a representation of a place
or thing.
the Commonwealth includes the Territories.
(2) In this Part, unless the contrary
intention appears:
(a) expressions referring to
obtaining, collecting, recording, using, having in possession, communicating,
receiving or retaining include obtaining, collecting, recording, using, having
in possession, communicating, receiving or retaining in whole or in part, and
whether the thing or information itself, or only the substance, effect or
description of the thing or information, is obtained, collected, recorded,
used, possessed, communicated, received or retained;
(b) expressions referring to obtaining
or retaining any sketch, plan, photograph, model, cipher, note, document,
article or information include copying or causing to be copied the whole or a
part of the sketch, plan, photograph, model, cipher, note, document, article or
information; and
(c) expressions referring to the
communication of any sketch, plan, photograph, model, cipher, note, document,
article or information include the transfer or transmission, or the publishing,
of the sketch, plan, photograph, model, cipher, note, document, article or
information.
(3) A reference in the Part to a sketch,
plan, photograph, model, cipher, note, document or article or to information
shall be read as including a reference to a copy of, a part of or a copy of a
part of a sketch, plan, photograph, model, cipher, note, document or article or
information.
(4) For the purposes of this Part, a place
that is occupied by, or a thing that is under the control of, the Commonwealth
shall be deemed to belong to the Commonwealth.
(5) This Part applies to and in relation to a
sketch, plan, photograph, model, cipher, note, document or article by
whomsoever it is made and whatsoever information it contains.
79
Official secrets
(1) For the purposes of this section, a
sketch, plan, photograph, model, cipher, note, document, or article is a
prescribed sketch, plan, photograph, model, cipher, note, document or article
in relation to a person, and information is prescribed information in relation
to a person, if the person has it in his possession or control and:
(a) it has been made or obtained in
contravention of this Part or in contravention of section 91.1 of the Criminal
Code;
(b) it
has been entrusted to the person by a Commonwealth officer or a person holding
office under the Queen or he has made or obtained it owing to his position as a
person:
(i) who is or has been a
Commonwealth officer;
(ii) who holds or has held
office under the Queen;
(iii) who holds or has held
a contract made on behalf of the Queen or the Commonwealth;
(iv) who is or has been
employed by or under a person to whom a preceding subparagraph applies; or
(v) acting with the
permission of a Minister;
and, by reason of its nature or
the circumstances under which it was entrusted to him or it was made or
obtained by him or for any other reason, it is his duty to treat it as secret;
or
(c) it relates to a prohibited place
or anything in a prohibited place and:
(i) he knows; or
(ii) by reason of its
nature or the circumstances under which it came into his possession or control
or for any other reason, he ought to know;
that it should not be
communicated to a person not authorized to receive it.
(2) If a person with the intention of
prejudicing the security or defence of the Commonwealth or a part of the
Queen’s dominions:
(a) communicates a prescribed sketch,
plan, photograph, model, cipher, note, document or article, or prescribed
information, to a person, other than:
(i) a person to whom he is
authorized to communicate it; or
(ii) a person to whom it
is, in the interest of the Commonwealth or a part of the Queen’s dominions, his
duty to communicate it;
or permits a person, other than
a person referred to in subparagraph (i) or (ii), to have access to it;
(b) retains a prescribed sketch, plan,
photograph, model, cipher, note, document or article in his possession or
control when he has no right to retain it or when it is contrary to his duty to
retain it; or
(c) fails
to comply with a direction given by lawful authority with respect to the
retention or disposal of a prescribed sketch, plan, photograph, model, cipher,
note, document or article;
he shall be guilty of an
indictable offence.
Penalty: Imprisonment for 7 years.
(3) If a person communicates a prescribed
sketch, plan, photograph, model, cipher, note, document or article, or
prescribed information, to a person, other than:
(a) a
person to whom he is authorized to communicate it; or
(b) a person to whom it is, in the
interest of the Commonwealth or a part of the Queen’s dominions, his duty to
communicate it;
or permits a person, other than a person referred to in paragraph (a)
or (b), to have access to it, he shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
(4) If a person:
(a) retains a prescribed sketch, plan,
photograph, model, cipher, note, document or article in his possession or
control when he has no right to retain it or when it is contrary to his duty to
retain it;
(b) fails to comply with a direction
given by lawful authority with respect to the retention or disposal of a
prescribed sketch, plan, photograph, model, cipher, note, document or article;
or
(c) fails
to take reasonable care of a prescribed sketch, plan, photograph, model,
cipher, note, document or article, or prescribed information, or to ensure that
it is not communicated to a person not authorized to receive it or so conducts
himself as to endanger its safety;
he shall be guilty of an
offence.
Penalty: Imprisonment for 6 months.
(5) If a
person receives any sketch, plan, photograph, model, cipher, note, document,
article or information, knowing or having reasonable ground to believe, at the
time when he receives it, that it is communicated to him in contravention of
section 91.1 of the Criminal Code or subsection (2) of this
section, he shall be guilty of an indictable offence unless he proves that the
communication was contrary to his desire.
Penalty: Imprisonment for 7 years.
(6) If a person receives any sketch, plan,
photograph, model, cipher, note, document, article or information, knowing, or
having reasonable ground to believe, at the time when he receives it, that it
is communicated to him in contravention of subsection (3), he shall be
guilty of an offence unless he proves that the communication was contrary to
his desire.
Penalty: Imprisonment for 2 years.
(7) On a prosecution under subsection (2)
it is not necessary to show that the accused person was guilty of a particular
act tending to show an intention to prejudice the security or defence of the
Commonwealth or a part of the Queen’s dominions and, notwithstanding that such
an act is not proved against him, he may be convicted if, from the
circumstances of the case, from his conduct or from his known character as
proved, it appears that his intention was to prejudice the security or defence
of the Commonwealth or a part of the Queen’s dominions.
(8) On a prosecution under this section,
evidence is not admissible by virtue of subsection (7) if the magistrate
exercising jurisdiction with respect to the examination and commitment for
trial of the defendant, or the judge presiding at the trial, as the case may
be, is of the opinion that that evidence, if admitted:
(a) would not tend to show that the
defendant intended to prejudice the security or defence of the Commonwealth or
a part of the Queen’s dominions; or
(b) would, having regard to all the
circumstances of the case and notwithstanding subsection (9), prejudice
the fair trial of the defendant.
(9) If evidence referred to in subsection (8)
is admitted at the trial, the judge shall direct the jury that the evidence may
be taken into account by the jury only on the question whether the defendant
intended to prejudice the security or defence of the Commonwealth or a part of
the Queen’s dominions and must be disregarded by the jury in relation to any
other question.
(10) A person charged with an offence against subsection (2)
may be found guilty of an offence against subsection (3) or (4) and a
person charged with an offence against subsection (5) may be found guilty
of an offence against subsection (6).
80
Prohibited places
The
following places shall be prohibited places:
(a) any work of defence, arsenal,
factory, dockyard, aerodrome, camp, ship, aircraft, telegraph or signal
station, or office, belonging to the Queen or the Commonwealth, and any other
place belonging to the Queen or the Commonwealth used for the purpose of
building, repairing, making, obtaining or storing any ship, aircraft, arms, or
materials or instruments for use in time of war, or any plans or documents
relating thereto;
(aa) any camp, barracks or place where
prisoners of war, internees or members of the Defence Force are detained;
(b) any place not belonging to the
Queen or the Commonwealth where any ship, aircraft, arms, or materials or instruments
of use in time of war, or any plans of documents relating thereto, are being
made, repaired, obtained, tested or stored under contract with, or with any
person on behalf of, the Queen or the Commonwealth;
(c) any place belonging to the Queen
or the Commonwealth which is for the time being declared by the Governor‑General
to be a prohibited place for the purposes of this Part on the ground that
information with respect thereto, or damage thereto, would be useful to an
enemy or to a foreign power; and
(d) any railway, road, way, or
channel, or other means of communication by land or water (including any works
or structures being part thereof or connected therewith), or any place used for
gas, water, electricity works or other works for purposes of a public
character, or any place where any ship, aircraft, arms, or materials or
instruments of use in time of war, or any plans or documents relating thereto,
are being made, repaired, obtained, tested or stored otherwise than on behalf
of the Queen or the Commonwealth, which is for the time being declared by the
Governor‑General by proclamation to be a prohibited place for the
purposes of this Part, on the ground that information with respect thereto, or
the destruction or obstruction thereof, or interference therewith, would be
useful to an enemy or to a foreign power.
83
Unlawful soundings
(1) Any person who in the Commonwealth or in
any Territory:
(a) takes any unlawful soundings;
(b) makes any record of any unlawful
soundings;
(c) intentionally has in possession
any record of unlawful soundings;
(d) communicates to any person outside
the Commonwealth or any Territory any record of or information concerning
unlawful soundings; or
(e) communicates to any other person
any record of or information concerning unlawful soundings with intent that the
record or information may be communicated to any person outside the
Commonwealth or any Territory;
shall be guilty of an indictable offence.
Penalty: Imprisonment for 2 years.
(2) For the purposes of this section all
soundings taken in the territorial waters of the Commonwealth or any Territory
shall be deemed to be unlawful unless they were made under the authority of the
Queen, the Commonwealth Government, or a State Government, or the Government of
a Territory, or were reasonably necessary for the navigation of the vessel from
which they were taken or for any purpose in which the vessel from which they
were taken was lawfully engaged.
(3) In any prosecution under this section,
proof that any soundings were not unlawfully taken shall lie upon the
defendant.
(4) Any figure or word or sign representing a
figure (other than the printed figures appearing on any official or recognized
map or chart) appearing on any map or sketch of any portion of the coast or
territorial waters of Australia or of a Territory shall, in the absence of
satisfactory proof to the contrary, be deemed to be a record of an unlawful
sounding, but nothing in this subsection shall affect proof of unlawful
soundings in any other manner.
(5) All
records of unlawful soundings including all maps or charts having thereon any
record of unlawful soundings shall be forfeited to the Commonwealth.
(6) A reference in this section to soundings
shall be read as including a reference to a hydrographic survey and a reference
to the taking of soundings shall be read as including a reference to the making
of a hydrographic survey.
85
Institution of prosecution
(1) A prosecution under this Part shall be
instituted only by or with the consent of the Attorney‑General or of a
person acting under his direction but a person charged with an offence against
this Part may be arrested, or a warrant for his arrest may be issued and
executed, and he may be remanded in custody or on bail, notwithstanding that
the consent of the Attorney‑General or a person acting under his
direction has not been obtained, but no further proceedings shall be taken
until that consent has been obtained.
(2) Nothing in this section shall prevent the
discharging of the accused if proceedings are not continued within a reasonable
time.
85B
Hearing in camera etc.
(1) At any time before or during the hearing
before a federal court, a court exercising federal jurisdiction or a court of a
Territory of an application or other proceedings, whether in pursuance of this
Act or otherwise, the judge or magistrate, or other person presiding or
competent to preside over the proceedings, may, if satisfied that such a course
is expedient in the interest of the defence of the Commonwealth:
(a) order that some or all of the
members of the public shall be excluded during the whole or a part of the
hearing of the application or proceedings;
(b) order that no report of the whole
or a specified part of or relating to the application or proceedings shall be
published; or
(c) make
such order and give such directions as he thinks necessary for ensuring that no
person, without the approval of the court, has access, either before, during or
after the hearing of the application or the proceedings, to any affidavit, exhibit,
information or other document used in the application or the proceedings that
is on the file in the court or in the records of the court.
(2) A person
who contravenes or fails to comply with an order made or direction given in
pursuance of this section shall be guilty of an offence.
Penalty: Imprisonment for 5 years.
85D
Forfeiture of articles etc.
A photograph, sketch, plan, model,
article, cipher, note, record, document, die, key, badge, device, seal, stamp
or paper which is made, obtained, collected, recorded, retained, forged,
possessed or otherwise dealt with in contravention of this Part is forfeited to
the Commonwealth.
Part VIIA—Offences relating to postal services
85E
Interpretation—definitions
In this Part, unless the contrary intention
appears:
article in the course of post means an
article that is being carried by post, and includes an article that has been
collected or received by Australia Post for carriage by post, but has not been
delivered by Australia Post.
Australia Post means the Australian Postal
Corporation.
carried by post means carried by or through
Australia Post.
employee, in relation to Australia Post,
includes a person who performs services for or on behalf of Australia Post and
an employee of such a person.
mail‑bag includes a package, parcel,
container or wrapper belonging to Australia Post in which articles in the
course of post are customarily contained, whether or not it actually contains
such articles.
postal message means:
(a) a material record of an unwritten
communication:
(i) carried by post; or
(ii) collected or received
by Australia Post for carriage by post; or
(b) a material record issued by
Australia Post as a record of an unwritten communication:
(i) carried by post; or
(ii) collected or received
by Australia Post for carriage by post.
85F
Interpretation—expressions used in Australian Postal Corporation Act
Unless the contrary intention appears,
expressions used in this Part, and in the Australian Postal Corporation Act
1989, have the same respective meanings as in that Act.
85G
Forgery of postage stamps etc.
(1) A person
shall not forge a postage stamp.
Penalty: Imprisonment for 10 years.
(2) A person
shall not utter a postage stamp knowing it to be forged.
Penalty: Imprisonment for 10 years.
(3) A person shall not make, use, have in his
or her possession, or sell or otherwise dispose of, any paper or article that
has affixed to it, or printed on it, a mark, label or design resembling,
apparently intended to resemble or pass for, or likely to be mistaken for, a
postage stamp, knowing it is not a postage stamp.
Penalty: Imprisonment for 5 years.
(4) A person shall not make, use, have in his
or her possession, or sell or otherwise dispose of, any article resembling,
apparently intended to resemble or pass for, or likely to be mistaken for, an
envelope, letter‑card, aerogram or other article on which Australia Post
has caused a postage stamp to be affixed or printed, knowing that it is not
such an article.
Penalty: Imprisonment for 5 years.
(5) A person shall not make, use, have in his
or her possession, or sell or otherwise dispose of, any die, plate or
instrument capable of making a mark, label or design in the form of, or in a
form resembling, apparently intended to resemble or pass for, or likely to be
mistaken for, a postage stamp, knowing that it is such a die, plate or
instrument.
Penalty: Imprisonment for 5 years.
(5A) Subsections (3), (4) and (5) do not
apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal
Code).
(6) A person shall be taken to utter a forged
postage stamp if the person:
(a) tenders it or puts it off; or
(c) uses or deals with it; or
(e) attempts to induce any person to
use, deal with, act on or accept it.
85H
Special paper for postage stamps
(1) A person
shall not:
(a) intentionally
make, use, have in his or her possession, or sell or otherwise dispose of,
paper:
(i) supplied for, or used
by, Australia Post for the purpose of printing postage stamps; or
(ii) resembling, or
apparently intended to resemble or pass for, paper supplied for, or used by,
Australia Post for that purpose;
(b) intentionally make, use, have in
his or her possession, or sell or otherwise dispose of, paper:
(i) supplied for, or used
by, a person other than Australia Post for the purpose of printing postage
stamps for Australia Post; or
(ii) resembling, or
apparently intended to resemble or pass for, paper supplied for, or used by, a
person other than Australia Post for that purpose; or
(c) intentionally make, use, have in
his or her possession, or sell or otherwise dispose of, any instrument or thing
for making a mark, label or design resembling, or apparently intended to
resemble or pass for, any distinctive mark, label or design used on any paper
especially supplied for the purpose of the printing of postage stamps by or on
behalf of Australia Post.
Penalty: Imprisonment for 5 years.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
85N
Wrongful delivery of postal article etc.
A person
shall not intentionally cause an article in the course of post to be delivered
to, or received by, a person other than the person to whom it is directed or
that person’s authorised agent.
Penalty: Imprisonment for 1 year.
85Q
Forgery of postal messages etc.
(1) A person shall not forge a postal
message.
Penalty: Imprisonment for 10 years.
(2) A person shall not utter a postal message
knowing it to be forged.
Penalty: Imprisonment for 10 years.
(3) A person shall be taken to utter a forged
postal message if the person:
(a) tenders it or puts it off; or
(c) uses or deals with it; or
(e) attempts to induce any person to
use, deal with, act on or accept it.
85R
Wrongful delivery of postal messages
A person shall not intentionally cause a
postal message to be delivered to or received by a person other than the person
to whom it is directed or that person’s authorised agent.
Penalty: Imprisonment for 1 year.
85T
Sending false postal messages
A person
shall not:
(a) intentionally and without a
person’s authority, submit, or cause to be submitted, to Australia Post as a
postal message signed or to be sent by the person, a postal message that was
not so signed or to be sent;
(b) intentionally submit, or cause to
be submitted, to Australia Post a postal message signed with the name of a
fictitious person;
(c) intentionally and without the
authority of the person sending a postal message, alter the postal message; or
(d) intentionally
write, issue or deliver a document purporting to be a postal message that has
been carried by post knowing that it is not such a message.
Penalty: Imprisonment for 1 year.
85U
Obstructing carriage of articles by post
A person
shall not intentionally obstruct or hinder the carriage by post of any article.
Penalty: Imprisonment for 2 years.
85V Interference
with property of Australia Post
(1) A person shall not, without the authority
of Australia Post, intentionally tamper or interfere with a post‑box, or
stamp vending machine, erected by Australia Post, or any other property
belonging to Australia Post.
Penalty: Imprisonment for 1 year.
(1A) For the purposes of an offence against subsection (1),
absolute liability applies to whichever one of the following physical elements
of circumstance is relevant to the offence:
(a) that the post‑box, or stamp
vending machine, is erected by Australia Post;
(b) that the property belongs to
Australia Post.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(2) A person
shall not, without the authority of Australia Post, intentionally alter, tamper
or interfere with, or obliterate any notice, writing or other marking on or
attached to property belonging to Australia Post.
Penalty: 30 penalty units.
(3) For the purposes of an offence against subsection (2),
absolute liability applies to the physical element of circumstance of the
offence, that the notice, writing or other marking is on or attached to
property belonging to Australia Post.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
85W
Causing narcotic substances to be carried by post
(1) A person shall not intentionally cause to
be carried by post an article that consists of, encloses or contains a
prescribed narcotic substance within the meaning of the Customs Act 1901.
Penalty: Imprisonment for 2 years.
(2) Where an act constitutes an offence
against a law of a State or Territory, the validity of the law is not affected
merely because the act also constitutes an offence against subsection (1).
85Z
Articles carried by post to be taken to be Australia Post’s property
For the purpose of any prosecution for
an offence in relation to an article carried by post or under the control of
Australia Post, the article shall be taken to be the property of Australia
Post.
85ZA
Postage stamps to be valuable securities etc.
A postage stamp, and any document issued
by Australia Post in relation to the carriage by post of money or a direction
to pay an amount of money, shall be taken to be a valuable security for the
purposes of any law relating to larceny.
Part VIIC—Pardons, quashed convictions and spent convictions
Division 1—Interpretation and application of Part
85ZL
Interpretation of Part
In this Part, unless the contrary
intention appears:
AUSTRAC means the Australian Transaction
Reports and Analysis Centre continued in existence by the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006.
Commonwealth authority means:
(a) a Commonwealth Minister;
(b) a Commonwealth Department;
(ba) the Defence Force;
(c) a body (whether incorporated or
not), or a tribunal, established or appointed for a public purpose by or under
a Commonwealth law, not being:
(i) an incorporated
company, society or association; or
(ii) an organisation within
the meaning of Schedule 1 to the Workplace Relations Act 1996 or a
branch of such an organisation; or
(iii) a transitionally
registered association within the meaning of Schedule 10 to the Workplace
Relations Act 1996;
(d) a body established or appointed by
the Governor‑General, or by a Commonwealth Minister, otherwise than by or
under a Commonwealth law;
(e) a person holding or performing the
duties of an office established by or under, or an appointment made under, a
Commonwealth law other than the office of Secretary of a Commonwealth
Department;
(f) a person holding or performing the
duties of an appointment made by the Governor‑General, or by a
Commonwealth Minister, otherwise than under a Commonwealth law;
(g) a federal court;
(h) the Supreme Court of the Australian
Capital Territory; or
(j) the Australian Federal Police.
Commonwealth Department means an Agency
within the meaning of the Public Service Act 1999.
Commonwealth law
means:
(a) an Act other than:
(i) the Australian
Capital Territory (Self‑Government) Act 1988; or
(ii) the
Northern Territory (Self‑Government) Act 1978;
(b) an instrument (including rules,
regulations or by‑laws) made under an Act (other than an Act referred to
in subparagraph (a)(i) or (ii)); or
(c) any other legislation that applies
as a law of the Commonwealth (other than legislation in so far as it is applied
by an Act referred to in subparagraph (a)(i) or (ii)), to the extent that
it operates as such a law.
Commonwealth Minister means a Minister of
State of the Commonwealth.
Commonwealth offence means an offence against
a Commonwealth law.
complaint means a complaint under subsection
85ZZA(1).
designated offence means:
(a) a sexual offence; or
(b) any other offence against the
person if the victim of the offence was under 18 at the time the offence was
committed.
designated position means a position in a
Commonwealth authority which the head of the authority has determined to be a
designated security assessment position whose duties are likely to involve
access to national security information classified as secret or top secret.
foreign law means a law of a foreign country.
foreign offence means an offence against a
foreign law.
intelligence or security agency means:
(a) the Australian Security
Intelligence Organisation; or
(b) the Australian Secret Intelligence
Service; or
(c) the Office of National
Assessments; or
(d) that part of the Department of
Defence known as the Defence Signals Directorate; or
(e) that part of the Department of
Defence known as the Defence Intelligence Organisation; or
(f) that part of the Department of
Defence known as the Defence Imagery and Geospatial Organisation.
law enforcement agency means:
(a) the Australian Federal Police;
(b) the police force of a State or
Territory;
(ba) the Australian Customs Service;
(bb) the Australian Commission for Law
Enforcement Integrity;
(c) the ACC;
(e) the CrimTrac Agency;
(f) the Independent Commission
Against Corruption established under the Independent Commission Against
Corruption Act, 1988 of the State of New South Wales, or a similar body
established under a law of another State;
(g) the New South Wales Crime
Commission established under the New South Wales Crime Commission Act 1985 of New
South Wales, or a similar body established under a law of another State;
(h) the Office of the Director of
Public Prosecutions, or a similar body established under a State law;
(j) a Director of Public
Prosecutions, or a person performing a similar function, appointed under a law
of a State;
(k) staff appointed to assist a
Director or person referred to in paragraph (j); or
(m) officers or members of the Attorney‑General’s
Department of a State or a similar State Department, or of a body administered
by such a Department, being officers or members whose primary function is the
institution or conduct of proceedings for State offences.
national security information means
information affecting the defence, security or international relations of Australia.
Privacy Act means the Privacy Act 1988.
Secretary, in relation to a Commonwealth
Department, means the Agency Head within the meaning of the Public Service
Act 1999.
security has the same meaning as in the Australian
Security Intelligence Organisation Act 1979.
spent, in relation to a conviction, has the
meaning given it in section 85ZM.
State includes the Australian Capital
Territory and the Northern Territory.
State authority means:
(a) a State Minister;
(b) a State Department;
(c) a body (whether incorporated or
not), or a tribunal, established or appointed for a public purpose by or under
a State law, not being:
(i) an incorporated
company, society or association;
(ii) an association of
employers or employees that is registered or recognised under a State law
dealing with the conciliation and arbitration of industrial disputes; or
(iii) the body corporate
constituted under subsection 6(1) of the Legal Practitioners Ordinance 1970 of
the Australian Capital Territory or a similar body constituted under a law of
another State;
(d) a body established or appointed by
a Governor of a State, or by a State Minister, or by the Australian Capital
Territory Executive or the Administrator of the Northern Territory otherwise
than by or under a State law;
(e) a person holding or performing the
duties of an office established by or under, or an appointment made under, a
State law, other than the office of head of a State Department (however
described);
(f) a person holding or performing
the duties of an appointment, being an appointment made by a Governor of a
State or by a State Minister, or by the Australian Capital Territory Executive
or the Administrator of the Northern Territory otherwise than under a State
law;
(g) a State court; or
(h) a State police force.
State law means a law in force in a State
(other than a Commonwealth law).
State offence means an offence against a
State law.
Territory does not include the Australian
Capital Territory or the Northern Territory.
Territory law means a law in force in a
Territory (other than a Commonwealth law).
Territory offence means an offence against a
Territory law.
waiting period, in relation to an offence,
means:
(a) if the person convicted of the
offence was dealt with as a minor in relation to the conviction—the period of 5
years beginning on the day on which the person was convicted of the offence; or
(b) in any other case—the period of 10
years beginning on the day on which the person was convicted of the offence.
85ZM
Meaning of conviction and spent conviction
(1) For the purposes of this Part, a person
shall be taken to have been convicted of an offence if:
(a) the person has been convicted,
whether summarily or on indictment, of the offence;
(b) the person has been charged with,
and found guilty of, the offence but discharged without conviction; or
(c) the person has not been found
guilty of the offence, but a court has taken it into account in passing
sentence on the person for another offence.
(2) For the purposes of this Part, a person’s
conviction of an offence is spent if:
(a) the person has been granted a
pardon for a reason other than that the person was wrongly convicted of the
offence; or
(b) the person was not sentenced to
imprisonment for the offence, or was not sentenced to imprisonment for the
offence for more than 30 months, and the waiting period for the offence has
ended.
85ZN
Meaning of quash
For the
purposes of this Part, a person’s conviction of an offence shall be taken to
have been quashed:
(a) where the person was convicted of
the offence—if the conviction has been quashed or set aside;
(b) where the person was found guilty
of the offence, but discharged without conviction—if the finding of guilt has
been quashed or set aside; or
(c) where the person was not found
guilty of the offence, but a court has taken it into account in passing
sentence on the person for another offence:
(i) if the person’s conviction
of the other offence has been quashed or set aside; or
(ii) if the court’s
decision to take the offence into account has been set aside.
85ZP
Application of Part
(1) This Part applies in relation to a person
convicted of an offence whether the person was convicted before or after the
commencement of this Part.
(2) A reference in this Part to a person
convicted of an offence does not include a reference to a body corporate.
(3) Nothing in this Part authorises a person
or body to disclose or take into account a conviction of an offence if to do so
would contravene any Commonwealth law, State law, Territory law or foreign law.
(4) Nothing in this Part affects anything
lawfully done before a pardon is granted or a conviction is quashed or spent.
85ZQ
Part binds the Crown
This Part binds the Crown in right of
the Commonwealth, of each of the States, of the Australian Capital Territory,
of the Northern Territory and of Norfolk Island.
Division 2—Pardons for persons wrongly convicted, and quashed convictions
85ZR
Pardons for persons wrongly convicted
(1) Despite any other Commonwealth law or any
State law or Territory law, where a person has been granted a free and absolute
pardon for a Commonwealth offence or a Territory offence because the person was
wrongly convicted of the offence:
(a) the person shall be taken, in any
State or Territory, for all purposes, never to have been convicted of the
offence; and
(b) the person shall be taken, in a
foreign country, by any Commonwealth authority or State authority in that
country, for all purposes, never to have been convicted of the offence.
(2) Despite any other Commonwealth law or any
Territory law, where, under a State law or a foreign law a person is, in
particular circumstances or for a particular purpose, to be taken never to have
been convicted of an offence under a law of that State or foreign country:
(a) the person shall be taken, in any
Territory, in corresponding circumstances or for a corresponding purpose, never
to have been convicted of that offence; and
(b) the person shall be taken, in any
State or foreign country, in corresponding circumstances or for a corresponding
purpose, by any Commonwealth authority in that State or country, never to have
been convicted of that offence.
85ZS Effect
of pardons for persons wrongly convicted
Without affecting the generality of
section 85ZR, but despite any other Commonwealth law or any State law or
Territory law, where, under section 85ZR, a person is, in particular
circumstances or for a particular purpose, to be taken never to have been
convicted of an offence:
(a) the person is not required, in
those circumstances or for that purpose, to disclose the fact that the person
was charged with, or convicted of, the offence;
(b) it is lawful for the person to
claim, in those circumstances, or for that purpose, on oath or otherwise, that
he or she was not charged with, or convicted of, the offence;
(c) in the case of a Commonwealth
offence or a Territory offence—the person is not otherwise subject to any legal
duty or disability to which he or she would not have been subject if he or she
had not been convicted; and
(d) anyone else who knows, or could
reasonably be expected to know, that section 85ZR applies to the person in
relation to the offence shall not:
(i) without the person’s
consent, disclose the fact that the person was charged with, or convicted of,
the offence to any other person, or to a Commonwealth authority or State
authority, where it is lawful for the first‑mentioned person not to disclose
it to that other person or that authority; or
(ii) in those
circumstances, or for that purpose, take account of the fact that the person
was charged with, or convicted of, the offence.
85ZT
Quashed convictions
(1) Despite any other Commonwealth law or any
State law or Territory law, where a person’s conviction of a Commonwealth
offence or a Territory offence has been quashed, the person is not required:
(a) in any State or Territory—to
disclose to any person, for any purpose, the fact that the person has been
charged with, or convicted of, the offence; or
(b) in a foreign country—to disclose
to any Commonwealth authority or State authority in that country, for any
purpose, the fact that the person has been charged with, or convicted of, the
offence.
(2) Despite any other Commonwealth law or any
Territory law, where a person’s conviction of a State offence or a foreign
offence has been quashed, the person is not required:
(a) in any Territory—to disclose to
any person, for any purpose, the fact that the person has been charged with, or
convicted of, the offence; or
(b) in any State or foreign country—to
disclose to any Commonwealth authority in that State or country, for any
purpose, the fact that the person has been charged with, or convicted of, the
offence.
85ZU
Effect of quashed convictions
Despite any other Commonwealth law or
any State law or Territory law, where, under section 85ZT, it is lawful
for a person not to disclose, in particular circumstances, or for a particular
purpose, the fact that he or she was charged with, or convicted of, an offence:
(a) it is lawful for the person to
claim, in those circumstances, or for that purpose, on oath or otherwise, that
he or she was not charged with, or convicted of, the offence; and
(b) anyone else who knows, or could
reasonably be expected to know, that section 85ZT applies to the person in
relation to the offence shall not:
(i) without the person’s
consent, disclose the fact that the person was charged with, or convicted of,
the offence to any other person, or to a Commonwealth authority or State
authority, where it is lawful for the first‑mentioned person not to
disclose it to that other person or that authority; or
(ii) in those
circumstances, or for that purpose, take account of the fact that the person
was charged with, or convicted of, the offence.
Division 3—Spent convictions
85ZV
Spent convictions
(1) Subject to Division 6, but despite
any other Commonwealth law or any State law or Territory law, if a person’s
conviction of a Commonwealth offence or a Territory offence is spent, the
person is not required:
(a) in any State or Territory—to
disclose to any person, for any purpose, the fact that the person has been
charged with, or convicted of, the offence; or
(b) in a foreign country—to disclose
to any Commonwealth authority or State authority in that country, for any
purpose, the fact that the person has been charged with, or convicted of, the
offence.
(2) Subject to Division 6, but despite
any other Commonwealth law or any Territory law, if a person’s conviction of a
State offence or a foreign offence is spent, the person is not required:
(a) in any Territory—to disclose to
any person, for any purpose, the fact that the person has been charged with, or
convicted of, the offence; or
(b) in any State or foreign country—to
disclose to any Commonwealth authority in that State or country, for any
purpose, the fact that the person has been charged with, or convicted of, the
offence.
(3) Subject to Division 6, but despite
any other Commonwealth law or any Territory law, where:
(a) a person was convicted of a State
offence;
(b) subsection (2) does not apply
to the person in relation to the offence; and
(c) under
a law in force in that State, being a law dealing with the disclosure or taking
into account of spent convictions (however described in that law) it is lawful
for the person, in particular circumstances or for a particular purpose, not to
disclose the fact that the person was charged with, or convicted of, the
offence;
the person is not required, in corresponding circumstances
or for a corresponding purpose:
(d) in a Territory—to disclose the
fact that the person was charged with, or convicted of, the offence; or
(e) in a State or foreign country—to
disclose that fact to any Commonwealth authority in that State or country.
85ZW
Effect of right of non‑disclosure
Subject to Division 6, but despite
any other Commonwealth law, or any State law or Territory law, where, under
section 85ZV, it is lawful for a person not to disclose, in particular
circumstances, or for a particular purpose, the fact that he or she was charged
with, or convicted of, an offence:
(a) it is lawful for the person to
claim, in those circumstances, or for that purpose, on oath or otherwise, that
he or she was not charged with, or convicted of, the offence; and
(b) anyone else who knows, or could
reasonably be expected to know, that section 85ZV applies to the person in
relation to the offence shall not:
(i) without the person’s
consent, disclose the fact that the person was charged with, or convicted of,
the offence to any other person, or to a Commonwealth authority or State
authority, where it is lawful for the first‑mentioned person not to
disclose it to that other person or that authority; or
(ii) in those
circumstances, or for that purpose, take account of the fact that the person
was charged with, or convicted of, the offence.
Division 4—Convictions of further offences
85ZX
Convictions of further Commonwealth or Territory offences
(1) Where:
(a) Division 3 applies to a
person in relation to an offence of which the person was convicted, or would
(unless an order is made under this section) so apply to the person if the
waiting period for the offence had ended; and
(b) before or after the end of the
waiting period for the offence, the person is convicted summarily, by a court
exercising federal jurisdiction or a court of a Territory, of another offence,
being an offence committed during that waiting period;
the court may order that Division 3 ceases to apply
or does not apply to the person, as the case requires, in relation to the
earlier offence until the waiting period for the later offence has ended.
(2) Where:
(a) Division 3 applies to a
person in relation to an offence of which the person was convicted, or would
(but for this subsection) so apply to the person if the waiting period for the
offence had ended; and
(b) before or after the end of the
waiting period for the offence, the person is convicted on indictment, by a
court exercising federal jurisdiction or a court of a Territory, of another
offence, being an offence committed during that waiting period;
Division 3 ceases to apply or does not apply to the
person, as the case requires, in relation to the earlier offence until the
waiting period for the later offence has ended.
85ZY
Convictions of further State or foreign offences
Subject to subsection 85ZV(3), where:
(a) Division 3 applies to a
person in relation to an offence of which the person was convicted, or would so
apply to the person if the waiting period for the offence had ended; and
(b) before or after the end of the
waiting period for the offence, the person is convicted (whether summarily or
on indictment) by a court of a State (not being a court exercising federal jurisdiction)
or a court of a foreign country, of another offence, being an offence committed
during that waiting period;
Division 3 ceases to apply or does not apply to the
person, as the case requires, in relation to the earlier offence until the
waiting period for the later offence has ended.
Division 5—Complaints to Privacy Commissioner
85ZZ
Privacy Commissioner’s functions
(1) The Privacy Commissioner has the
following functions:
(a) to investigate an act or practice
of a person or of a Commonwealth authority or State authority that may breach
Division 2 or 3 and, where the Commissioner considers it appropriate, to
try, by conciliation, to effect a settlement of the matters that gave rise to
the investigation;
(b) to receive and examine any written
requests for complete or partial exclusion of persons from the application of
Division 3 and advise the Minister whether an exclusion should be granted
and whether there should be any restrictions on the circumstances in which an
exclusion would apply.
(2) In the performance of those functions,
the Privacy Commissioner shall:
(a) have due regard for the protection
of important human rights and social interests that compete with the rights
given by this Part, including the recognition of the right of government and
business to achieve their objectives in an efficient way;
(b) take account of:
(i) international
obligations accepted by Australia, including those concerning the international
technology of communications; and
(ii) developing general
international guidelines relevant to the better protection of individual
privacy;
(c) take into account the nature of
the offence concerned;
(d) ensure that his or her advice is,
within the limitations of the powers of the Commonwealth, capable of
acceptance, adaptation and extension in any State or Territory; and
(e) ensure that his or her directions
and advice are consistent with the Information Privacy Principles set out in
section 14 of the Privacy Act.
85ZZA
Complaints to the Privacy Commissioner
(1) A person may complain to the Privacy
Commissioner about an act or practice of another person or of a Commonwealth
authority or State authority that may be a breach of Division 2 or 3.
(2) A complaint shall be in writing.
(3) It is the duty of members of the Privacy
Commissioner’s staff to give appropriate help to a person who wishes to make a
complaint and wants help to formulate the complaint.
(4) The complaint shall specify the
respondent to the complaint.
85ZZB
Identity of respondent to complaint
(1) If a complaint is about an act or
practice of a Commonwealth Department or a State Department, or an officer of
such a Department, the Secretary or head of the Department is the respondent to
the complaint.
(2) If a complaint is about an act or
practice of another Commonwealth authority or State authority, or a member or
officer of such an authority, being an authority that is within the
responsibility of a Commonwealth or State Minister but not within the
responsibility of a Commonwealth Department or a State Department, the Minister
is the respondent to the complaint.
(3) If a complaint is about an act or
practice of any other Commonwealth authority or State authority, or a member or
officer of such an authority, the chief executive officer of the authority is
the respondent to the complaint.
(4) If a complaint is about an act or
practice of a person other than a Commonwealth authority or a State authority,
that person is the respondent to the complaint.
85ZZC
Investigation of complaints
(1) The Privacy Commissioner shall consider a
complaint, and shall investigate the act or practice complained of, if the act
or practice may be a breach of Division 2 or 3.
(2) The Privacy Commissioner may decide not
to investigate, or not to investigate further, an act or practice about which a
complaint has been made if satisfied that:
(a) the act or practice is not a
breach of Division 2 or 3;
(b) the complainant has not complained
to the respondent about the act or practice;
(c) the complainant has complained to
the respondent, and that the respondent:
(i) has dealt, or is
dealing, adequately with the complaint; or
(ii) has not yet had an
adequate opportunity to deal with the complaint;
(d) the complaint was made more than
12 months after the complainant became aware of the act or practice;
(e) the complaint is frivolous,
vexatious, misconceived or lacking in substance;
(f) the act or practice is the
subject of an application under another Commonwealth law, or under a State law
or a Territory law, and that the subject‑matter of the complaint has
been, or is being, dealt with adequately under that law; or
(g) the act or practice could be made
the subject of an application under another Commonwealth law, or under a State
law or a Territory law, for a more appropriate remedy.
85ZZD
Determinations of Privacy Commissioner
(1) After investigating a complaint, the
Commissioner may:
(a) make a determination dismissing
the complaint; or
(b) find the complaint substantiated
and make a determination that includes one or more of the following:
(i) a declaration that the
authority or person about whom the complaint was made has engaged in conduct
unlawful under this Act and should not repeat or continue that conduct;
(ii) a declaration that the
respondent should do any reasonable act or carry out any reasonable course of
conduct to redress any loss or damage suffered by the complainant;
(iii) a declaration that the
respondent should employ or re‑employ the complainant;
(iv) a declaration that the
respondent should promote the complainant;
(v) a declaration that the
complainant is entitled to a specified amount by way of compensation for any
loss or damage suffered because of the act or practice about which the
complaint was made;
(vi) a declaration that the
termination of a contract or agreement should be varied to redress any loss or
damage suffered by the complainant;
(vii) a declaration that it
would be inappropriate for any further action to be taken in the matter.
(2) The Privacy Commissioner may require one
or both parties to a complaint to attend such counselling as is specified by
the Commissioner with a view to settling the matter to which the complaint
relates.
(3) When making a determination, the Privacy
Commissioner shall state any findings of fact upon which the determination is
based.
(4) When making a determination, the Privacy
Commissioner may declare that the complainant is entitled to a specified amount
to reimburse the complainant for expenses reasonably incurred in connection
with the making of the complaint and the investigation of the complaint.
(5) In paragraph (1)(b):
damage includes humiliation suffered by the
complainant or injury to his or her feelings.
85ZZE
Payment of compensation or expenses
Where a determination under paragraph
85ZZD(1)(b) includes a declaration of a kind referred to in subparagraph
85ZZD(1)(b)(v) or subsection 85ZZD(4), the declaration has effect as a
declaration that the complainant is entitled to receive the specified amount:
(a) if the complaint was about an act
or practice of a Commonwealth authority—from the Commonwealth;
(b) if the complaint was about an act
or practice of a State authority—from that State; or
(c) in any other case—from the
respondent.
85ZZF
Enforcement of determination or recommendation
(1) The Privacy Commissioner or the
complainant may apply to the Federal Court for an order to enforce a
determination under paragraph 85ZZD(1)(b) or subsection 85ZZD(4).
(2) If the Federal Court is satisfied that
the authority or person about whom the complaint was made has done anything
that is a breach of Division 2 or 3 the court may make any orders it
thinks fit (including a declaration of right).
(3) An order may give effect to a
determination.
85ZZG
Application of Privacy Act
(1) Sections 42 to 48 (inclusive) of the
Privacy Act, and sections 50, 64 to 68 (inclusive), 96 and 98 of that Act
apply, with any necessary changes, in relation to a complaint as if the
complaint had been made under subsection 36(1) of that Act.
(2) Where a provision of the Privacy Act is
applied under subsection (1) or (2), a reference in that provision to an
agency shall be read as a reference to a Commonwealth authority or a State
authority, as the case requires.
Division 6—Exclusions
85ZZH
Exclusions
Division 3 does not apply in
relation to the disclosure of information to or by, or the taking into account
of information by a person or body referred to in one of the following
paragraphs for the purpose specified in relation to the person or body:
(a) a law enforcement agency, for the
purpose of making decisions in relation to prosecution or sentencing or of
assessing:
(i) prospective employees
or prospective members of the agency; or
(ii) persons proposed to be
engaged as consultants to, or to perform services for, the agency or a member
of the agency;
(b) an intelligence or security
agency, for the purpose of assessing:
(i) prospective employees
or prospective members of the agency; or
(ii) persons proposed to be
engaged as consultants to, or to perform services for, the agency or a member
of the agency;
(c) a court or tribunal established
under a Commonwealth law, a State law or a Territory law, for the purpose of
making a decision, including a decision in relation to sentencing;
(d) a person who makes a decision under
the Migration Act 1958, the Australian Citizenship Act 1948, or
the Immigration Act 1980 of the Territory of Norfolk Island, for the
purpose of making that decision;
(e) a person or body who employs or
otherwise engages other persons in relation to the care, instruction or
supervision of minors, for the purpose of finding out whether a person who is
being assessed by the person or body for that employment or engagement has been
convicted of a designated offence;
(f) a person or body who otherwise
makes available care, instruction or supervision services for minors, for the
purpose of finding out whether a person who is being assessed by the person or
body in connection with those services has been convicted of a designated
offence;
(g) a Commonwealth authority, for the
purpose of assessing appointees or prospective appointees to a designated
position;
(h) AUSTRAC, for the purpose of
assessing:
(i) prospective members of
the staff of AUSTRAC; or
(ii) persons proposed to be
engaged as consultants under subsection 225(1) of the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006; or
(iii) persons whose services
are proposed to be made available to AUSTRAC under subsection 225(3) of that
Act;
(j) the Australian Government
Solicitor, for the purpose of instituting or conducting proceedings for
Commonwealth offences;
(k) a prescribed person or body, for a
prescribed purpose, in relation to a conviction for a prescribed offence.
85ZZJ
Further exclusions—law enforcement agencies
(1) Division 3 does not apply in
relation to:
(a) the disclosure of information by a
law enforcement agency, or an employee or member of a law enforcement agency,
to another law enforcement agency, or an employee or member of another law
enforcement agency, where the disclosure is made in the discharge of the duties
of the first‑mentioned agency, employee or member;
(b) filing or recording information
that comes into the possession of a law enforcement agency, or an employee or
member of a law enforcement agency, where the filing or recording is done in
the discharge of the duties of the agency, employee or member; or
(c) the use by a law enforcement
agency of information relating to the investigation or prevention of crime,
where the investigation or prevention of crime is a function of the agency.
(2) In this
section:
employee, in relation to a law enforcement
agency, includes a person engaged as a consultant to, or to perform services
for, the agency or a member of the agency.
85ZZK
Fair reporting: pardons and quashed convictions
The publication of a fair and accurate
report of the circumstances in which a person was granted a pardon (on any
ground), or a person’s conviction was quashed, and of any related court
proceedings, is not a breach of Division 2 or 3.
Part VIII—Miscellaneous
87
False certificates
Any person who, being authorized or
required by a law of the Commonwealth to give any certificate touching any
matter by virtue whereof the rights of any person may be harmfully affected,
gives a certificate which is, to his knowledge, false in any material
particular, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
89
Trespassing on Commonwealth land
(1) A person
who, without lawful excuse (proof whereof shall lie upon him), trespasses or
goes upon any prohibited Commonwealth land shall be guilty of an offence.
Penalty: 10 penalty units.
(2) Where a
person is found upon prohibited Commonwealth land, a constable, a protective
service officer or an authorized Commonwealth officer may request the person to
furnish his name and address to the constable or officer and, if the person
fails to comply with the request, he shall be guilty of an offence.
Penalty: 10 penalty units.
(3) Where a person is found upon prohibited
Commonwealth land and a constable or authorized Commonwealth officer has
reasonable grounds to believe that that person has gone upon the land in
circumstances that amount to an offence against subsection (1), the
constable or officer may apprehend that person and that person may be detained
in proper custody to be dealt with according to law.
(4) An authorized Commonwealth officer shall
not, under this section, request a person to furnish his name or address, or
apprehend a person, unless he first produces to the person the instrument by
virtue of which he is an authorized Commonwealth officer.
(5) In this
section:
authorized Commonwealth officer means a
Commonwealth officer declared by a Minister, by instrument in writing, to be an
authorized Commonwealth officer for the purposes of this section.
prohibited Commonwealth land means land
belonging to, or in the occupation of, the Commonwealth or a public authority
under the Commonwealth, being land upon which is posted a notice to the effect
that trespassing upon the land is prohibited.
protective service officer has the same
meaning as in the Australian Federal Police Act 1979.
89A
Discharging firearms on or over Commonwealth land
(1) A person
who, without lawful authority or excuse (proof whereof shall lie upon him),
discharges a firearm upon or over a prohibited area shall be guilty of an
offence and the firearms shall be forfeited to the Commonwealth.
Penalty: Imprisonment for 6 months.
(2) A person who commits an offence against
this section may be apprehended by a constable or an authorized Commonwealth
officer and detained in proper custody to be dealt with according to law.
(3) An authorized Commonwealth officer shall
not, under this section, apprehend a person unless he first produces to the
person the instrument by virtue of which he is an authorized Commonwealth
officer.
(4) In this
section:
authorized Commonwealth officer means a
Commonwealth officer declared by a Minister, by instrument in writing, to be an
authorized Commonwealth officer for the purposes of this section.
prohibited area means land belonging to, or
in the occupation of, the Commonwealth or a public authority under the
Commonwealth, being land upon which is posted a notice to the effect that
shooting upon or over the land is prohibited.
90
Trespass by cattle or live stock
Any
person who, without lawful excuse (proof whereof shall lie upon him), suffers
or permits any cattle or other live stock in his possession, custody, or
control, to trespass or stray upon any land belonging to, or in the occupation
of, the Commonwealth, shall be guilty of an offence.
Penalty: 1 penalty unit.
90A
Destroying etc. posters etc. relating to Commonwealth loans
A person
shall not, without lawful authority, destroy, injure, disfigure or remove a
poster, advertisement or notice relating to a Commonwealth loan.
Penalty: Imprisonment for 1 year.
90B
False statements in documents filed etc. under laws of a Territory
A person
who:
(a) in a document that, under a law of
a Territory, is, or is required to be, produced or furnished to, or filed or
lodged with, a Commonwealth officer; or
(b) in
a document that is required to be registered under, or to be prepared for the
purposes of, a law of a Territory;
intentionally makes a
statement that the person knows is false shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
91
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed, or necessary or convenient to be
prescribed, for carrying out or giving effect to this Act.