Crimes ACT 1914

CRIMES ACT 1914

CRIMES ACT 1914 SECT 23WA

23WA Definitions

(1): In this Part:

Aboriginal legal aid organisation has the same meaning as the expression has in Part 1C.

adult means a person of or above 18 years of age.

AFP function means a function of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979 .

appropriately qualified , in relation to carrying out a forensic procedure, means:

(a): having suitable professional qualifications or experience to carry out the forensic procedure; or
(b): qualified under the regulations to carry out the forensic procedure.

authorised applicant for an order for the carrying out of a forensic procedure on a suspect means:

(a): the constable in charge of a police station; or
(b): the investigating constable in relation to a relevant offence.

child means a person who is at least 10 years of age but under 18 years of age.

Commissioner means the Commissioner of the Australian Federal Police and includes a constable or staff member to whom the Commissioner has delegated the functions and powers conferred or imposed on the Commissioner under this Act.

Note: See section 23YQ for the Commissioner's power to delegate.

corresponding law is defined in section 23YUA.

destroy is defined in subsection (5).

DNA database system is defined in section 23YDAC.

exercise a function includes perform a duty.

forensic material means:

(a): samples; or
(b): hand prints, finger prints, foot prints or toe prints; or
(c): photographs or video recordings; or
(d): casts or impressions;

taken from or of a person's body by a forensic procedure.

forensic procedure means:

(a): an intimate forensic procedure; or
(b): a non-intimate forensic procedure;

but does not include any intrusion into a person's body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

function includes a power, authority or duty.

incapable person means an adult who:

(a): is incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or
(b): is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.

in custody is explained in subsection (2).

indictable offence means an indictable offence against a law of the Commonwealth.

inform is explained in subsection (4).

informed consent is explained in section 23WF.

interview friend is explained in section 23WB.

intimate forensic procedure means the following forensic procedures:

(a): an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(b): the taking of a sample of blood;
(c): the taking of a sample of saliva, or a sample by buccal swab;
(d): the taking of a sample of pubic hair;
(e): 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 or a transgender person who identifies as a female, the breasts;
(f): the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(g): the taking of a dental impression;
(h): the taking of a photograph or 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 or a transgender person who identifies as a female, the breasts.

investigating constable means the constable in charge of the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.

judge means a State or Territory judge.

legal representative of a suspect means a legal practitioner acting for the suspect.

member of the opposite sex of a person is defined in subsection (7).

member of the same sex as a person is defined in subsection (7).

non-intimate forensic procedure means the following forensic procedures:

(a): an examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts, that requires touching of the body or removal of clothing;
(b): the taking of a sample of hair other than pubic hair;
(c): the taking of a sample from a nail or under a nail;
(d): 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 or a transgender person who identifies as a female, the breasts;
(e): the taking of a sample by vacuum suction, by scraping or by 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 or a transgender person who identifies as a female, the breasts;
(f): the taking of a hand print, finger print, foot print or toe print;
(g): the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

offence does not include an offence against a law of the Australian Capital Territory or any other Territory.

offender means:

(a): a serious offender; or
(b): a prescribed offender.

order means:

(a): in relation to a suspect—an order of a magistrate under section 23WS or interim order of a magistrate under section 23XA; or
(b): in relation to an offender—an order of a judge or magistrate under section 23XWO; or
(c): in relation to a volunteer—an order of a magistrate under section 23XWU.

parent of a child includes a person who:

(a): is legally entitled to, and who has, custody of the child; or
(b): is legally responsible for the day-to-day care, welfare and development of the child and has the child in his or her care.

participating jurisdiction is defined in section 23YUA.

police station includes:

(a): a police station of a State or Territory; and
(b): a building occupied by the Australian Federal Police.

prescribed offence means an offence under a law of the Commonwealth punishable by a maximum penalty of imprisonment for life or 2 or more years.

prescribed offender means a person who is under sentence for a prescribed offence.

Note: For the meaning of under sentence , see subsection (8).

prison medical officer means, in relation to a prison or other place of detention, a person appointed or acting as medical officer for the prison or other place of detention.

recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 of New South Wales, or under the corresponding provisions of a law of another Australian jurisdiction.

relevant offence means:

(a): in relation to a person who is a suspect:

(i): the indictable offence in relation to which the person is a suspect; or
(ii): any other indictable offence arising out of the same circumstances; or
(iii): any other indictable offence in respect of which the evidence likely to be obtained as a result of a proposed forensic procedure carried out on the suspect is likely to have probative value; or

(b): in relation to an offender—the offence for which the offender was convicted and to which an application for an order authorising a forensic procedure relates.

responsible person , in relation to the DNA database system, means the person responsible for the care, control and management of the system.

sample has a meaning affected by subsection (3).

senior constable means a constable of the rank of sergeant or higher.

serious offence means an offence under a law of the Commonwealth punishable by a maximum penalty of imprisonment for life or 5 or more years.

serious offender means a person who is under sentence for a serious offence.

Note: For the meaning of under sentence , see subsection (8).

suspect , in relation to an indictable offence, means:

(a): a person whom a constable suspects on reasonable grounds has committed the indictable offence; or
(b): a person charged with the indictable offence; or
(c): a person who has been summonsed to appear before a court in relation to the indictable offence.

tape recording means audio recording, video recording or recording by other electronic means.

transgender person is defined in subsection (6).

volunteer is defined in section 23XWQ.

(2): In this Part, a person is in custody if he or she is in the lawful custody of a constable.
(3): In this Part, a sample taken from a person includes a sample taken from the person that consists of matter from another person's body.
(4): In this Part, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.

Destroy forensic material or information

(5): For the purposes of this Part, a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.

Transgender persons

(6): In this Part, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a): who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or
(b): who has identified as a member of the opposite sex by living as a member of the opposite sex; or
(c): who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex;

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

(7): In this Part (other than subsection (6)), a reference:

(a): to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies; and
(b): to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.

(8): For the purposes of the definitions of prescribed offender and serious offender , a person is under sentence in relation to a prescribed offence or a serious offence if the person:

(a): is serving a sentence in a prison (including a gaol, lock-up or other place of detention); or
(b): is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20AB(1) as a sentence or order that may be passed or made by a court, under that section, in respect of a person convicted of a federal offence; or
(c): is released under a parole order made under subsection 19AL(1) or (2); or
(d): is released on a licence granted under section 19AP; or
(e): being a child or young person, is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20C(1) as a sentence or order that, under that section, may be imposed on the child or young person who in a State or Territory is convicted of an offence against the law of the Commonwealth; or
(f): is subject to an order made under Division 9 of Part 1B; or
(g): is convicted and conditionally released as provided for in subsection 20 (1), either:

(i): in the case of paragraph 20(1)(a)—without sentence being passed; or
(ii): in the case of paragraph 20(1)(b)—after sentence has been passed.