Crimes (Forensic Procedures) Regulation 2014

This Regulation is the Crimes (Forensic Procedures) Regulation 2014.

This Regulation commences on 1 August 2014 and is required to be published on the NSW legislation website.

Note—

This Regulation repeals and replaces the Crimes (Forensic Procedures) Regulation 2008 which would otherwise be repealed on 1 September 2014 by section 10 (2) of the Subordinate Legislation Act 1989.

(1)  In this Regulation—

NSW Forensic and Analytical Science Service means the NSW Forensic and Analytical Science Service (being an administrative arm of the Division of the Health Administration Corporation known as NSW Health Pathology).

the Act means the Crimes (Forensic Procedures) Act 2000.

(2)  Notes included in this Regulation do not form part of this Regulation.

cl 3: Am 2016 (73), Sch 1 [1].

The Aboriginal Legal Service (NSW/ACT) Limited is a prescribed organisation for the purposes of the definition of Aboriginal legal aid organisation in section 3 (1) of the Act.

For the purposes of the definition of responsible person in section 3 (1) of the Act, the Secretary of the Ministry of Health is declared to be the person responsible for the care, control and management of the DNA database system.

cl 6: Am 2016 (73), Sch 1 [2].

For the purposes of section 72 (a) of the Act, the following are the prescribed particulars—

(a)  the name of the serious indictable offender giving consent to the carrying out of the forensic procedure,

(b)  a description of the forensic procedure,

(c)  the name of the police officer who has requested consent to the carrying out of the procedure,

(d)  a statement as to whether or not the police officer has informed the offender (personally or in writing) of the matters set out in section 69 of the Act,

(e)  a statement as to whether or not the offender has been given the opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the offender’s choice.

For the purposes of section 75J (a) of the Act, the following are the prescribed particulars—

(a)  the name of the untested former offender giving consent to the carrying out of the forensic procedure,

(b)  a description of the forensic procedure,

(c)  the name of the police officer who has requested consent to the carrying out of the procedure,

(d)  a statement as to whether or not the police officer has informed the former offender (personally or in writing) of the matters set out in section 75H of the Act,

(e)  a statement as to whether or not the former offender has been given the opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the former offender’s choice.

For the purposes of section 75Z (a) of the Act, the following are the prescribed particulars—

(a)  the name of the untested registrable person giving consent to the carrying out of the forensic procedure,

(b)  a description of the forensic procedure,

(c)  the name of the police officer who has requested consent to the carrying out of the procedure,

(d)  a statement as to whether or not the police officer has informed the registrable person (personally or in writing) of the matters set out in section 75X of the Act,

(e)  a statement as to whether or not the untested registrable person has been given the opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the registrable person’s choice.

For the purposes of section 77 (2) (e) of the Act, the following are prescribed matters—

(a)  that the DNA database system includes 2 indexes relevant to volunteers—a volunteers (limited purposes) index and a volunteers (unlimited purposes) index,

(b)  that the volunteer, or parent or guardian of the volunteer, may give consent subject to the condition that information obtained from the analysis of forensic material taken in accordance with the consent will only be placed on a specified index of that system, or will not be placed on either index.

For the purposes of section 78 (a) of the Act, the following are the prescribed particulars—

(a)  the name of the person giving consent to the carrying out of the forensic procedure,

(b)  a description of the forensic procedure,

(c)  the name of the police officer who has requested consent to the carrying out of the procedure,

(d)  a statement as to whether or not the police officer has informed the person (personally or in writing) of the matters set out in section 77 of the Act,

(e)  the name of the independent person in whose presence the consent is given,

(f)  a statement indicating whether the consent is given subject to a condition about on which index, if any, information obtained from the analysis of forensic material taken in accordance with the consent may be placed.

For the purposes of section 81C (4) (a) of the Act, the following are the prescribed particulars—

(a)  the name of the parent or guardian giving consent to the carrying out of the forensic procedure,

(b)  a description of the forensic procedure,

(c)  the name of the police officer who has requested consent to the carrying out of the procedure,

(d)  a statement as to whether or not the police officer has informed the person (personally or in writing) of the matters set out in section 81C (3) of the Act,

(e)  the name of the independent person in whose presence the consent is given,

(f)  a statement indicating whether the consent is given subject to a condition about on which index, if any, information obtained from the analysis of forensic material taken in accordance with the consent may be placed.

(1)  For the purposes of section 92 (2) (b) of the Act, a person may access information stored on the DNA database system for the purpose of making it available to the person to whom it relates if—

(a)  an application in writing to make the information available to the person is made to the responsible person for the DNA database system by or on behalf of the person, and

(b)  before the information is made available, the applicant provides such reasonable proof of identity (if any) as may be required by the responsible person.

(2)  For the purposes of section 109 (2) (b) of the Act, a person may disclose information stored on the DNA database system for the purpose of making it available to the person to whom it relates if—

(a)  an application in writing to make the information available to the person is made to the responsible person for the DNA database system by or on behalf of the person, and

(b)  before the information is made available, the applicant provides such reasonable proof of identity (if any) as may be required by the responsible person.

(1)  For the purposes of section 92 (2) (j) of the Act—

(a)  the purpose of facilitating the assessment of the validity of a claim of apparent or possible wrongful conviction for a serious indictable offence made by or in relation to a serious indictable offender is a prescribed purpose for which a person authorised by the responsible person for the DNA database system may access information stored on the DNA database system, whether that information relates to the offender or any other person, and

(b)  the purpose of allowing persons acting for or on behalf of the NSW Forensic and Analytical Science Service to check whether or not the DNA profile of a person who is suspected of being an untested former offender or an untested registrable person is contained in the offenders index is a prescribed purpose for which a person authorised by the responsible person for the DNA database system may access information stored on the DNA database system, whether that information relates to the person who is so suspected or any other person.

(2)  This clause applies whether a person was convicted before or after the commencement of this clause.

cl 14: Am 2016 (73), Sch 1 [3].

(1)  For the purposes of section 109 (2) (g) of the Act—

(a)  the purpose of facilitating the assessment by persons or classes of persons authorised by the Minister for Police and Emergency Services, of the validity of a claim of apparent or possible wrongful conviction for a serious indictable offence made by or in relation to a serious indictable offender is a prescribed purpose for which a person may disclose information stored on the DNA database system, whether that information relates to the offender or any other person, and

(b)  any purpose relating to the security classification, placement or management by or under the Crimes (Administration of Sentences) Act 1999 of a classifiable person is a prescribed purpose for which a person may disclose information that relates to the classifiable person that is stored on the DNA database system, and

(c)  the purpose of allowing persons acting for or on behalf of the NSW Forensic and Analytical Science Service to check whether or not the DNA profile of a person who is suspected of being an untested former offender or an untested registrable person is contained in the offenders index is a prescribed purpose for which a person authorised by the responsible person for the DNA database system may disclose information stored on the DNA database system.

(2)  For the purposes of section 109 (3) (o) of the Act—

(a)  the purpose of analysing a sample to obtain a DNA profile to be placed on the DNA database system is a prescribed purpose for which a person may disclose information revealed by the carrying out of a forensic procedure on a suspect, offender or volunteer, and

(b)  any purpose relating to the security classification, placement or management by or under the Crimes (Administration of Sentences) Act 1999 of a classifiable person is a prescribed purpose for which a person may disclose information relating to the classifiable person revealed by the forensic procedure that was carried out on the classifiable person.

(3)  This clause applies—

(a)  whether a person was convicted (as referred to in subclause (1)) before or after the commencement of this clause, and

(b)  whether the information referred to in subclause (1) was stored on the DNA database system before, or is so stored after, the commencement of this clause, and

(c)  whether the information referred to in subclause (2) is revealed by a forensic procedure that was carried out before or is carried out after the commencement of this clause.

(4)  In this clause, classifiable person means a person who is or was a serious indictable offender on whom a forensic procedure has been carried out under Part 7 of the Act.

cl 15: Am 2016 (73), Sch 1 [4].

For the purposes of paragraph (b) of the definition of corresponding law in section 95 of the Act, each of the following is declared to be a corresponding law for the purposes of the Act—

(a)  the provisions of the Crimes (Forensic Procedures) Act 2000 of the Australian Capital Territory,

(b)  Part ID of the Crimes Act 1914 of the Commonwealth,

(c)  Division 7 of Part VII of the Police Administration Act of the Northern Territory,

(d)  section 95B of the Prisons (Correctional Services) Act of the Northern Territory,

(e)  Division 3 of Part 2 and section 159 of the Youth Justice Act of the Northern Territory,

(f)  Chapter 17 of the Police Powers and Responsibilities Act 2000 of Queensland,

(g)  the provisions of the Criminal Law (Forensic Procedures) Act 2007 of South Australia,

(h)  the provisions of the Forensic Procedures Act 2000 of Tasmania,

(i)  Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958 of Victoria,

(j)  the provisions of the Criminal Investigation (Identifying People) Act 2002 of Western Australia.

(1)  The Crimes (Forensic Procedures) Regulation 2008 is repealed.

(2)  Any act, matter or thing that, immediately before the repeal of the Crimes (Forensic Procedures) Regulation 2008, had effect under that Regulation continues to have effect under this Regulation.