Western Australia
Criminal Investigation (Identifying People) Act 2002
CONTENTS
Part 1 — Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Meaning of “reasonably suspects” 7
5. Public officers may be authorised to exercise powers 7
6. Officer’s duty to identify himself or herself 8
7. Non‑consent to be assumed in some cases 8
8. Procedures for obtaining material from which to obtain DNA profile 8
9. Samples of material to be provided on request 9
10. When a charge is finalised without a finding of guilt 10
Part 2 — General
11. Application of this Act 11
12. Information and forensic material from another State, a Territory or the Commonwealth11
13. Assistance when exercising powers 12
14. Use of force when exercising powers 12
15. Applying for warrants 12
Part 3 — Personal details of people
16. Officer may ask for name, address, etc. 16
Part 4 — Identifying particulars of volunteers and others
Division 1 — Preliminary
17. Definitions 18
18. How identifying procedures are to be done 18
Division 2 — Volunteers
19. Volunteer for an identifying procedure to be informed 19
20. Volunteer may consent 20
Division 3 — Deceased people
21. Identifying particulars of deceased people 22
Division 4 — Police officers
22. Identifying particulars of police officers 23
Part 5 — Identifying particulars of victims and witnesses
23. Definitions 24
24. How identifying procedures are to be done 24
25. Request to adult to undergo identifying procedure 24
26. Request for protected person to undergo identifying procedure 26
27. Request and giving of information to be recorded 27
28. When identifying procedure may be done 28
29. Consent may be withdrawn 29
30. Decision may be changed 29
31. Officer may apply for IP warrant (involved protected person) 30
32. Application for IP warrant (involved protected person) 30
33. Issue and effect of IP warrant (involved protected person) 31
Part 6 — Identifying particulars of uncharged suspects
34. Definitions 35
35. Purpose of identifying procedure 35
36. How identifying procedures are to be done 35
37. Request to adult to undergo identifying procedure 36
38. Request for protected person to undergo identifying procedure 37
39. Request and giving of information to be recorded 38
40. When identifying procedure may be done 38
41. Consent may be withdrawn 39
42. Officer may apply for approval of IP warrant (suspect) 40
43. Application for approval to do non‑intimate identifying procedure on adult 40
44. Senior officer may approve non‑intimate identifying procedure to be done on adult 41
45. Application for IP warrant (suspect) 42
46. Issue and effect of IP warrant (suspect) 43
Part 7 — Identifying particulars of charged suspects
47. Definitions 45
48. How identifying procedures are to be done 45
49. Identifying particulars may be taken 45
50. Request and giving of information to be recorded 46
51. When identifying procedure may be done 46
Part 8 — How identifying procedures are to be done
52. Definitions 48
53. Application of this Part 48
54. General requirements 48
55. Sex of people doing procedures 49
56. Who may do an identifying procedure 50
57. Personal details may be obtained as well 51
58. How samples and impressions are to be taken 51
59. Procedures may be repeated 52
60. People not obliged to do procedures 52
Part 9 — Use and destruction of identifying information
61. Definitions 53
62. Identifying information of volunteers 54
63. Identifying information of deceased people 54
64. Identifying information of police officers 55
65. Identifying information of involved people 56
66. Identifying information of uncharged suspects 57
67. Identifying information of charged suspects 58
68. Results of matched information to be made available to suspects 59
69. Request for destruction of identifying information 59
70. Destroying identifying information 60
71. Responsibility for destroying identifying information 60
72. Supreme Court may order information not to be destroyed 61
73. Disclosure of identifying information 61
74. Use of illegal identifying information 62
75. Improper use of information obtained in accordance with Act 63
Part 10 — DNA databases
76. Definitions 64
77. DNA profiles lawfully obtained before commencement of Part 67
78. Permitted comparisons with DNA database indexes 67
79. Duties of database managers 69
80. Operators of DNA databases to be authorised 69
Part 11 — Admissibility of evidence
81. Evidence of refusal of consent etc. 70
82. Evidence of conduct of procedure 70
83. Evidence obtained illegally 71
84. Evidence kept illegally 71
85. Evidence from illegal use of information 72
86. Court may admit inadmissible evidence 72
Part 12 — Enforcement elsewhere in Australia
87. Definitions 74
88. Prescribing corresponding laws etc. 74
89. Registration of forensic orders 75
90. Forensic orders registered in WA may be executed in WA 75
91. Arrangements for sharing information 76
Part 13 — Miscellaneous
92. Legal protection for people acting under this Act 77
93. Regulations 77
94. Review of Act 77
Part 14 — Temporary provisions
95. Identifying particulars may be taken from people in custody and others (Schedule 1) 78
96. Consequential amendments (Schedule 2) 78
Schedule 1 — Obtaining and using identifying particulars of people in custody and others
1. Definitions 79
2. How identifying procedures are to be done 79
3. Request for prisoner on remand to undergo identifying procedure 79
4. Request for serious offender to undergo identifying procedure 80
5. Request and giving of information to be recorded 82
6. When identifying procedure may be done 82
7. Department of Justice CEO to assist WA Police 83
8. Destroying identifying information 84
Schedule 2 — Consequential amendments
1. Bail Act 1982 85
2. Conservation and Land Management Act 1984 85
3. The Criminal Code 85
4. Parks and Reserves Act 1895 86
5. Police Act 1892 86
6. Waterways Conservation Act 1976 87
7. Wildlife Conservation Act 1950 87
Western Australia
Criminal Investigation (Identifying People) Act 2002
No. 6 of 2002
An Act to enable personal details and identifying particulars of people to be obtained by police and other officers for forensic purposes, and for related purposes.
[Assented to 4 June 2002]
The Parliament of Western Australia enacts as follows:
Part 1 — Preliminary
1. Short title
This Act may be cited as the Criminal Investigation (Identifying People) Act 2002.
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different provisions.
3. Interpretation
(1) In this Act, unless the contrary intention appears —
“adult” means a person who has reached 18 years of age and in respect of whom there are no reasonable grounds to suspect that he or she is an incapable person;
“child” means a person who is under 18 years of age and in respect of whom there are no reasonable grounds to suspect that he or she is an incapable person;
“corresponding law” has the meaning given by section 87
“DNA database” has the meaning given by section 76;
“forensic database” has the meaning given by section 61;
“forensic purpose” means —
(a) investigating an offence or a suspected offence or offences generally;
(b) investigating the death of a person or identifying a deceased person; or
(c) investigating the whereabouts of or identifying a missing person;
“identifying feature”, in relation to a person, means a
For example: the face of a person or a birthmark, scar or tattoo on a person.
“identifying information” has, except in Schedule 1, the meaning given by section 61;
“identifying particular” has the meaning given by section 11(1), 17
“identifying procedure” means a procedure in the course of which —
(a) one or more identifying particulars of a person are obtained from the person;
(b) if practicable, the person’s personal details are obtained;
“impression” includes a cast;
“incapable person” means a person of any age —
(a) who is unable by reason of a mental disability (which term includes intellectual disability, a psychiatric condition, an acquired brain injury and dementia) to understand the general nature and effect of, and the reason for and the consequences of undergoing, an identifying procedure; or
(b) who is unconscious or otherwise unable to understand a request made or information given under this Act or to communicate whether or not he or she consents to an identifying procedure being done on him or her;
“intimate identifying procedure”, in relation to a person, means —
(a) an identifying procedure that is done on the person’s private parts;
(b) the taking of a dental impression of the person; or
(c) the taking of a sample of the person’s blood;
“IP warrant (involved protected person)” means a warrant issued under section 33;
“IP warrant (suspect)” means a warrant issued under section 46
“JP” means Justice of the Peace;
“non‑intimate identifying procedure”, in relation to a person, means an identifying procedure that is done on the person that is not an intimate identifying procedure, and includes the taking of a buccal swab from the person;
“offence” means an offence under a written law but does not include a contempt of court;
“officer” means a police officer or a public officer or both, as the case requires;
“official details” means —
(a) in respect of a police officer — the officer’s surname and rank and includes, in relation to an application by the officer under this Act for a warrant, the officer’s registered number;
(b) in respect of a public officer — the officer’s full name and official title;
“participating jurisdiction” has the meaning given by section 87;
“personal details”, in relation to a person, has the meaning given by section 16(1);
“photograph” includes a video recording and a digital image;
“police officer” means a person appointed under Part I of the Police Act 1892 to be a member of the Police Force of Western Australia;
“private parts”, in relation to a person, means the person’s genital area, anal area and buttocks and, in the case of —
(a) a female; or
(b) a male undergoing a reassignment procedure within the meaning of the Gender Reassignment Act 2000,
includes the person’s breasts;
“protected person” means a person who is a child or an incapable person;
“Public Advocate” has the meaning given by the Guardianship and Administration Act 1990;
“public officer” means a person, other than a police officer, appointed under a written law to an office that is prescribed under section 5(1);
“reasonably suspects” has the meaning given by section 4;
“remote communication” means any way of communicating at a distance including by telephone, fax, email and radio;
“responsible person”, in relation to a child, means —
(a) a parent of the child;
(b) a guardian of the child;
(c) another person who has responsibility for the day‑to‑day care of the child; or
(d) if no person mentioned in another paragraph of this definition is available — a person, or a person in a class of persons, prescribed by the regulations;
“responsible person”, in relation to an incapable person, means —
(a) the spouse of the incapable person;
(b) a parent of the incapable person;
(c) if the incapable person is under 18 years of age — a guardian of the incapable person;
(d) if the incapable person has reached 18 years of age — the Public Advocate or a guardian of the incapable person appointed under the Guardianship and Administration Act 1990;
(e) another person who has responsibility for the day‑to‑day care of the incapable person; or
(f) if no person mentioned in another paragraph of this definition is available — a person, or a person in a class of persons, prescribed by the regulations;
“senior officer” means —
(a) a police officer who is, or is acting as, a sergeant or an officer of a rank more senior than a sergeant;
(b) a public officer who is prescribed by the regulations to be a senior officer for the purpose of this Act;
“serious offence” means an offence the statutory penalty for which is strict security life imprisonment, life imprisonment or imprisonment for 12 months or more;
“statutory penalty”, in relation to an offence, means the penalty specified by a written law for the offence;
“volunteer” has the meaning given by section 17
“WA Police” means the Police Force of Western Australia provided for by the Police Act 1892.
(2) For the purposes of this Act a person is charged with an offence when the officer investigating the offence —
(a) informs the person that he or she will be charged with the offence, whether or not at that time the officer has made or sworn a complaint in respect of the offence; or
(b) makes or swears a complaint in respect of the offence,
whichever happens first.
(3) Examples prefaced by “For example:” in this Act do not form part of it and are provided to assist understanding.
4. Meaning of “reasonably suspects”
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she, acting in good faith, personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable.
5. Public officers may be authorised to exercise powers
(1) For the purposes of this Act and in particular the definition of “public officer” in section 3
(a) prescribe an office to which people are appointed under a written law for a public purpose and a function of which is the investigation of offences; and
(b) in respect of that office, specify those of the powers in this Act that a holder of that office may exercise, being powers that this Act provides may be exercised by a public officer.
(2) A public officer may only exercise a power under this Act in relation to an offence if —
(a) the office held by the public officer has been prescribed under subsection (1)(a);
(b) the power is one that has been specified under subsection (1)(b) as one that the officer may exercise; and
(c) the offence is one that the officer, by virtue of being such an officer, is authorised to investigate or prosecute.
6. Officer’s duty to identify himself or herself
(1) If under this Act an officer is required to identify himself or herself to a person the officer must —
(a) if the officer is a police officer —
(i) give the person the officer’s official details; and
(ii) if the officer is not in uniform, show the person evidence that the officer is a police officer;
(b) if the officer is a public officer —
(i) give the person the officer’s official details; and
(ii) show the person evidence that the officer is a public officer.
(2) If an officer cannot comply with subsection (1)(a)(ii) or (1)(b)(ii) immediately, the officer must comply with it as soon as practicable.
7. Non‑consent to be assumed in some cases
A person who, having been requested under this Act to undergo an identifying procedure —
(a) does not reply; or
(b) having consented to it resists the carrying out of it,
is taken not to have consented to undergoing it.
8. Procedures for obtaining
(1) Material from which to obtain the DNA profile of a person may be obtained by doing one or, subject to section 59
(a) by doing one or both of these non‑intimate identifying procedures —
(i) taking a buccal swab from the person;
(ii) taking a sample of the person’s hair (including the roots), other than pubic hair;
(b) by doing one or both of these intimate identifying procedures —
(i) taking a sample of the person’s blood;
(ii) taking a sample of the person’s pubic hair (including the roots).
(2) Without limiting subsection (1) material from which to obtain the DNA profile of a deceased person may be obtained by taking any body tissue from the person.
(3) A person must not use a procedure in subsection (1) to obtain material from a person unless it is impracticable to use a procedure listed before that procedure.
9. Samples of material to be provided on request
(1) In this section —
“sample” means a sample of material from which to obtain the DNA profile of a person that is taken from the person under this Act.
(2) This section applies to a sample if —
(a) there is enough of the sample to be analysed for the purposes of this Act and also by or on behalf of the person from whom the sample was taken; and
(b) the person requests a part of the sample.
(3) The officer responsible for a sample being taken must ensure that —
(a) a part of the sample that is enough for analysis is made available, without charge, to the person from whom it was taken;
(b) reasonable care is taken to ensure that the person’s part of the sample is protected and preserved until the person is given it; and
(c) reasonable assistance is given to the person to ensure that the sample is protected and preserved until it is analysed.
(4) A person from whom a sample is taken must be informed that, subject to the matter referred to in subsection (2)(a), a part of the sample will be made available to him or her if requested.
10. When a charge is finalised without a finding of guilt
For the purposes of this Act, a charge is finalised without a finding of guilt if —
(a) the charge is withdrawn;
(b) the charge is dismissed without a finding as to whether the person charged is guilty or not guilty; or
(c) the person charged is found not guilty of the charge and is not found guilty of any other offence of which the person could have been found guilty as a result of the charge and —
(i) no appeal is commenced against the finding; or
(ii) an appeal is commenced against the finding and the appeal is withdrawn or the finding is confirmed.
Part 2 — General
11. Application
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) an impression of an identifying feature of the person (including a dental impression);
(d) a sample of the person’s hair taken for purposes other than obtaining the person’s DNA profile;
(e) the person’s DNA profile;
“law enforcement officer” means a police officer or a person appointed under a written law for a public purpose.
(2) This Act does not apply —
(a) to a person who, not being a law enforcement officer acting in the course of duty, obtains an identifying particular from, or a personal detail of, another person; or
(b) to an identifying particular, or a personal detail, obtained by such a person.
(3) This Act does not apply to or in respect of an identifying particular, or a personal detail, obtained in accordance with another written law.
12. Information and forensic material from another State, a Territory or the Commonwealth
Subject to section 91(2), forensic material, or information obtained from it, that is taken in accordance with the law of another State, a Territory or the Commonwealth may be retained or used in this State for investigative, statistical or evidentiary purposes even if its retention or use would, but for this section, constitute a breach of, or failure to comply with, any provision of this Act relating to the carrying out of identifying procedures.
13. Assistance when exercising powers
(1) A person who may exercise a power in this Act may authorise as many other persons to assist in exercising the power as are reasonably necessary in the circumstances.
(2) A person so authorised may exercise the power or assist the other person in exercising the power, as the case requires.
(3) Whether authorised to do so or not, a person may assist another person in exercising a power in this Act if the person believes, on reasonable grounds, that the other person —
(a) is lawfully entitled to exercise the power; and
(b) needs assistance for the purpose of doing so.
(4) A person who under subsection (2) or (3) may exercise a power, or assist in exercising a power, must obey any lawful and reasonable directions of the person who gave the authorisation or who is being assisted.
14. Use of force when exercising powers
When exercising a power in this Act, a person may use any force that is reasonably necessary in the circumstances —
(a) to exercise the power; and
(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
15. Applying for warrants
(1) In this section —
“judicial officer” means a JP or a magistrate, as the case requires.
(2) This section applies to and in respect of an application to a judicial officer for a warrant if another section of this Act requires the application to be made under this section.
(3) The application must be made in writing in the prescribed form.
(4) Subject to subsection (6)(c), the application must be made, and any information in support of it must be given, on oath.
(5) The application must be made in person before a judicial officer unless —
(a) the warrant is needed urgently; and
(b) the applicant reasonably suspects that a judicial officer is not known to be available within a reasonable distance of the applicant,
in which case it may be made to a judicial officer by remote communication.
(6) If an application for a warrant is made to a judicial officer by remote communication —
(a) the applicant must prepare a written application and if practicable send it to the judicial officer;
(b) if it is not practicable to send the written application to the judicial officer, the applicant may make the application orally;
(c) if it is not practicable to comply with subsection (4), the applicant may make the application, and give information in support of the application to the judicial officer, in an unsworn form; and
(d) the judicial officer must not grant the application unless satisfied there are grounds under subsection (5)
(7) If the application is made orally under subsection (6)(6)(b), the judicial officer must complete the prescribed form of application.
(8) If information in support of the application is given orally, the judicial officer must make a record of it.
(9) If —
(a) an applicant makes an unsworn application or gives a judicial officer unsworn information; and
(b) the judicial officer issues a warrant,
the applicant must send the judicial officer an affidavit verifying the application or containing the information as soon as practicable after the warrant is issued.
(10) If the application is made by remote communication and the judicial officer issues the warrant, then —
(b) if it is not reasonably practicable to so send a copy of the warrant —
(i) the judicial officer must immediately give the applicant by remote communication any information that is required to be set out in the warrant;
(iii) the applicant must give the judicial officer a copy of the completed form as soon as practicable after the warrant is issued; and
(iv) the judicial officer must attach the copy of the completed form to the original warrant issued by the judicial officer and any affidavit received from the applicant in support of the application and make them available for collection by the applicant.
(11) If a copy of a warrant is received by remote communication under subsection (10)(10)(a) or a form of warrant is completed in accordance with subsection (10)(10)(b)(10)(b)(ii), it has the same effect as the original warrant issued by the judicial officer.
(12) If an applicant contravenes subsection (9) or (10), any evidence obtained under the warrant is not admissible in proceedings in a court unless the court decides otherwise under section 86
Part
16. Officer may ask for name, address, etc.
(1) In this section —
“personal details”, in relation to a person, means —
(a) the person’s full name;
(b) the person’s date of birth;
(c) the address of where the person is living;
(d) the address of where the person usually lives.
(2) If an officer reasonably suspects that a person whose personal details are unknown to the officer —
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person’s personal details
(3) If an officer reasonably suspects that a personal detail given by a person in response to a request is false, the officer may request the person to produce evidence of the correctness of the detail.
(5) An officer who is requested by a person to identify himself or herself must do so.
(6) A person who, without reasonable excuse, does not comply with a request made under subsection (2) or (3) commits an offence.
Penalty: Imprisonment for 12 months.
(7) For the purposes of subsection (6), the fact that an officer did not comply with subsection (5) as soon as practicable is a reasonable excuse.
(8) A person who, in response to a request made under subsection (2), gives any false personal details commits an offence.
Penalty: Imprisonment for 12 months.
(9) A person who, in response to a request made under subsection (3), produces any false evidence commits an offence.
Penalty: Imprisonment for 12 months.
Part 4 — Identifying particulars of volunteers and others
Division 1 — Preliminary
17. Definition
In this Part —
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) an impression of an identifying feature of the person (including a dental impression);
(d) a sample of the person’s hair taken for purposes other than obtaining the person’s DNA profile;
(e) the person’s DNA profile;
“volunteer” means a person who is —
(a) an adult to whom section 19(1)(a) applies;
(b) an incapable person to whom section 19(1)(b) applies; or
(c) a child to whom section 19(1)(c) applies.
18. How identifying procedures are to be done
An identifying procedure that under Division 2 or 4 may be done on a person must be done in accordance with Part 8.
Division 2 — Volunteers
19. Volunteer for an identifying procedure to be informed
(1) If —
(a) in the case of a person who is an adult, the person volunteers to a police officer to undergo an identifying procedure for or in connection with a forensic purpose;
(b) in the case of a protected person who is an incapable person, a responsible person wants the incapable person to undergo an identifying procedure for or in connection with a forensic purpose and informs a police officer accordingly; or
(c) in the case of a protected person who is a child —
(i) the child is willing to undergo an identifying procedure for or in connection with a forensic purpose; and
(ii) a responsible person wants the child to undergo the procedure and informs a police officer accordingly,
the officer must inform the volunteer and, if the case requires, the responsible person, in accordance with subsection (2).
(a) which identifying particulars of the volunteer are sought to be obtained by means of the identifying procedure;
(b) how the procedure will be carried out;
(c) that subject to his or her decision, the volunteer’s identifying information may be compared with or put in a forensic database;
(d) that the procedure may provide evidence that could be
(e) that he or she may decide whether —
(i) to limit the forensic purposes for which the volunteer’s identifying information may be used; or
(ii) to allow the identifying information to be used for unlimited forensic purposes;
(f) that he or she may decide whether the identifying information can be kept by the WA Police —
(i) for a limited period; or
(ii) indefinitely;
(g) that, if the procedure is done, he or she may subsequently change the decision on the matters in paragraphs (e) and (f) by notifying the Commissioner of Police;
(h) that the volunteer is not obliged to undergo the procedure;
(i) that he or she may get legal advice before deciding whether or not to consent to the procedure;
(j) that, if deciding to consent to the procedure, he or she may withdraw consent at any time before the procedure has been completed; and
(k) any matter prescribed by the regulations.
(3) The information in subsection (2) may be provided in writing.
20. Volunteer may consent
(1) If section 19(2) has been complied with —
(a) a volunteer who is an adult —
(i) may consent to the identifying procedure that he or she was informed about; and
(ii) if he or she consents, must decide the matters in section 19(2)(e) and (f);
(b) a responsible person —
(i) may consent to a protected person undergoing the identifying procedure that the responsible person was informed about; and
(ii) if he or she consents, must decide the matters in section 19(2)(e) and (f).
(2) The consent and decisions of a person must be recorded in writing on a form approved by the Commissioner of Police and signed by the person in the presence of a police officer.
(3) A copy of the person’s signed form must be given to the person.
(4) When the consent of a person has been given and recorded in accordance with this section, the identifying procedure may be done on the volunteer unless, before it has been completed —
(a) if the volunteer is an adult, the volunteer withdraws his or her consent; or
(b) if the volunteer is a protected person —
(i) the volunteer objects to or resists the carrying out of the procedure; or
(ii) the responsible person withdraws his or her consent to the volunteer undergoing the procedure.
(5) If an identifying procedure has been done under this Division on an adult, the adult may subsequently change his or her decision on the matters in section 19(2)(e) and (f) by notifying the Commissioner of Police.
(6) If an identifying procedure has been done under this Division on a protected person —
(a) a responsible person; or
(b) if the protected person was a child at the time the identifying procedure was done who has since then reached 18 years of age, that person,
may subsequently change the decision on the matters in section 19(2)(e) and (f) by notifying the Commissioner of Police.
Division 3 — Deceased people
21. Identifying particulars of
(1) The State Coroner may authorise the taking of identifying particulars from deceased people, whether or not their deaths are reportable deaths within the meaning of the Coroners Act 1996, for or in connection with forensic purposes.
(2) An authorisation given under subsection (1) may apply —
(a) generally to all deceased people or identifying particulars;
(b) to a specific class of deceased people or identifying particulars; or
(c) conditionally or unconditionally.
(3) A coroner, on his or her own initiative or on the application of a person with a proper interest, may —
(a) authorise a person to obtain an identifying particular from a deceased person for or in connection with a forensic purpose; and
(b) make any orders necessary to enable the identifying particular to be obtained, including orders relating to the temporary custody of the body of the deceased person.
(4) An authorisation given under this section must be in writing.
(5) If an authorisation is given under this section the person giving it must give directions for the purpose of section
Division 4 — Police officers
22. Identifying particulars of
(2) The powers in this section may be exercised as often as the Commissioner of Police thinks is necessary.
Part 5 — Identifying particulars of victims and witnesses
23. Definitions
In this Part —
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) an impression of an identifying feature of the person (but not including a dental impression);
(d) a sample of the person’s hair taken for purposes other than obtaining the person’s DNA profile;
(e) the person’s DNA profile;
“involved person” means a person who is not a suspect for an offence but who is reasonably suspected to have been the victim of or to have witnessed the commission of the offence.
24. How identifying procedures are to be done
An identifying procedure that under this Part may be done on an involved person must be done in accordance with Part 8.
25. Request to adult to undergo
(1) In this section —
“involved person” means an involved person who is an adult.
(2) If an officer reasonably suspects —
(a) that an offence has been committed; and
(b) that an identifying particular of an involved person, obtainable by means of a non‑intimate identifying procedure, will afford evidence of the commission of the offence or of who committed the offence,
the officer may request the person to consent to undergoing the non‑intimate identifying procedure to obtain the identifying particular.
(3) An officer who requests an involved person to consent to an identifying procedure must at the time inform the person of these matters —
(a) the offence that is suspected of having been committed and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that, subject to the person’s decision, information derived from the procedure may be compared with or put in a forensic database;
(e) the circumstances in which destruction may be requested under section 69
(f) that if the person should become a suspect for the offence, evidence provided by the procedure could be used in a court against the person;
(g) that the person may decide whether —
(i) to limit the forensic purposes for which information derived from the procedure may be used; or
(ii) to allow the information to be used for unlimited forensic purposes;
(h) that, if the procedure is done, the person may subsequently change the decision on the matters in paragraph (g) by notifying the Commissioner of Police;
(i) that the person may consent or refuse to consent to the procedure; and
(j) that, if the person consents to the procedure, he or she may withdraw consent at any time before the procedure has been completed.
26. Request for protected person to undergo
(1) In this section —
“involved person” means an involved person who is a protected person.
(2) If an officer reasonably suspects —
(a) that an offence has been committed; and
(b) that an identifying particular of an involved person, obtainable by means of a non‑intimate identifying procedure, will afford evidence of the commission of the offence or of who committed the offence,
the officer may request a responsible person to consent to the non‑intimate identifying procedure being done on the involved person to obtain the identifying particular.
(3) An officer who requests a responsible person to consent to a procedure being done on an involved person must at the time inform the responsible person of these matters —
(a) the offence that is suspected of having been committed and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that, subject to the responsible person’s decision, information derived from the procedure may be compared with or put in a forensic database;
(e) the circumstances in which destruction may be requested under section 69;
(f) that if the involved person should become a suspect for the offence, evidence provided by the procedure could be used in a court against the involved person;
(g) that the responsible person may decide whether —
(i) to limit the forensic purposes for which information derived from the procedure may be used; or
(ii) to allow the information to be used for unlimited forensic purposes;
(h) that, if the procedure is done, the responsible person may subsequently change the decision on the matters in paragraph (g) by notifying the Commissioner of Police;
(i) that the responsible person may consent or refuse to consent to the procedure being done on the involved person;
(j) that, if the responsible person consents to the procedure, he or she may withdraw consent at any time before the procedure has been completed; and
(k) that if the responsible person does not consent or withdraws consent —
(i) an application may be made for authority to do the procedure against the responsible person’s will; and
(ii) if authority is given the procedure may be done against the responsible person’s will.
27. Request and giving of information to be recorded
(1) An officer who makes a request under section 25 or 26 must ensure that a record is made of the request, of the information given under the section and of the involved person’s or responsible person’s responses (if any).
(2) The record must be an audiovisual record or in writing.
28. When identifying procedure may be done
(a) under section 25 a request is made to an involved person or under section 26 to a responsible person;
(b) the person is informed in accordance with section 25 or 26, as the case requires; and
(c) as the case requires, either —
(i) the involved person who is an adult consents to the procedure and decides the matters in section 25(3)(g); or
(ii) the responsible person consents to the procedure being done on the involved person who is a protected person and decides the matters in section 26(3)(g)
then the non‑intimate identifying procedure may be done on the involved person.
(2) If an involved person who is an adult, having been —
(a) requested under section 25 to consent to an identifying procedure; and
(b) informed under that section,
does not consent or withdraws consent to the procedure being done, the procedure cannot be done or continue to be done on the involved person.
(3) If a responsible person, having been —
(a) requested under section 26 to consent to an identifying procedure being done on an involved person who is a protected person; and
(b) informed under that section,
does not consent or withdraws consent to the procedure being done, the procedure may only be done on the involved person if a magistrate issues an IP warrant (involved protected person) that authorises it.
29. Consent
(1) This section applies to and in respect of an involved person if an identifying procedure may be done on the involved person under section 28(1).
(2) An adult involved person who has consented to undergoing the identifying procedure may withdraw his or her consent at any time before the procedure has been completed.
(3) A responsible person who has consented to an identifying procedure being done on an involved person who is a protected person may withdraw his or her consent at any time before the procedure on the involved person has been completed.
(4) If consent is withdrawn under this section, section 28(2) or (3) applies, as the case requires.
30. Decision may be changed
(1) If an identifying procedure has been done under section 28(1) on an involved person who is an adult, the involved person may subsequently change his or her decision on the matters in section 25(3)(g) by notifying the Commissioner of Police.
(2) If an identifying procedure has been done under section 28(1) on an involved person who is a protected person —
(a) a responsible person; or
(b) if the protected person was a child at the time the identifying procedure was done who has since then reached 18 years of age, that person,
may subsequently change the decision on the matters in section 26(3)(g) by notifying the Commissioner of Police.
31. Officer may apply for IP warrant (involved protected person)
An officer may apply for an IP warrant (involved protected person) to do an identifying procedure on an involved person who is a protected person —
(b) if under section 28
32. Application for IP warrant (involved protected person)
(1) Only an officer may apply for an IP warrant (involved protected person).
(2) An application for an IP warrant (involved protected person) must be made to a magistrate in accordance with section 15.
(a) name the person in respect of whom the warrant is wanted;
(b) state the offence in respect of which the involved person is suspected to have been an involved person;
(c) state the grounds on which the applicant suspects that the person is an involved person in respect of the offence;
(d) specify the identifying particular that is sought and the non‑intimate identifying procedure by means of which it is to be obtained;
(e) state the grounds on which the applicant suspects that the identifying particular will afford evidence of whether or not another person committed the offence;
(f) if the application is made under section 31(a) — state the grounds on which the applicant suspects that the investigation of the offence concerned would be prejudiced if a request were made under section 26; and
(g) comply with the relevant provisions of subsection (4).
(4) An application for an IP warrant (involved protected person) must also state the applicant’s grounds for suspecting —
(a) if the application is made under section 31(b) — either that it is not reasonably practicable to obtain a responsible person’s consent to the involved person undergoing the procedure or —
(i) that a responsible person has refused to or will not consent, or has withdrawn consent, to the involved person undergoing the procedure;
(ii) that the responsible person is a suspect in relation to a serious offence; and
(iii) that the procedure will afford evidence of whether or not the responsible person committed the offence;
and
(b) in the case of a child, that the child —
(i) is willing to undergo the non-intimate identifying procedure; and
(ii) is sufficiently mature and capable of understanding the general nature and effect of, and the reason for and the consequences of, undergoing the procedure.
33. Issue and effect of IP warrant (involved protected person)
(1) On an application made under section 32 a magistrate may issue an IP warrant (involved protected person) if the magistrate is satisfied —
(a) that, in respect of the matters in section 32(3) and (4) on which the applicant is required to have a suspicion, there are reasonable grounds for the applicant to have that suspicion; and
(b) that the interests of justice justify obtaining the identifying particular specified in the application.
(2) In determining whether to make and, if so, the terms of an IP warrant (involved protected person), the magistrate is to take into account —
(a) the seriousness of the offence in respect of which the involved person is suspected to have been a victim or witness;
(b) in the case of a child — the maturity of the child and his or her capacity to make decisions and whether he or she is willing to undergo the procedure, to the extent that those matters can be determined by the magistrate; and
(c) the best interests of the protected person.
(3) For the purposes of this section, a magistrate may inform himself or herself in any way he or she thinks fit.
(4) In the case of an application for an IP warrant (involved protected person) in respect of an incapable person, the magistrate may, on his or her own initiative —
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public Advocate; or
(c) if the warrant is issued, give a copy of it to the Public Advocate,
and may use remote communication to do so.
(5) An IP warrant (involved protected person) must contain this information —
(a) the official details of the applicant;
(b) the name of the involved person to whom it relates;
(c) the offence to which it relates;
(d) the identifying particular to be obtained and the non‑intimate identifying procedure by means of which it is to be obtained;
(e) either —
(i) the limited forensic purposes for or in connection with which the involved person’s identifying information may be used; or
(ii) a statement that the information may be used for or in connection with unlimited forensic purposes;
(f) whether that identifying information may be put in a forensic database;
(g) the period, not exceeding 14 days, during which it may be executed;
(h) the name of the magistrate who issued it; and
(i) the date and time when it was issued.
(6) An IP warrant (involved protected person) must be in the prescribed form.
(7) An IP warrant (involved protected person) authorises —
(a) an officer authorised by subsection (8) —
(i) to arrest the involved person to whom it relates; and
(ii) to detain him or her for a reasonable period in order to do the procedure specified in it;
and
(b) if applicable, the doing of the procedure on the involved person against the responsible person’s will.
(8) The powers in subsection (7)(7)(a) may be exercised by —
(a) if a police officer applied for the warrant, any police officer; or
(b) if a public officer applied for the warrant, any public officer who has the same functions as the applicant, or any police officer.
Part 6 — Identifying particulars of uncharged suspects
34. Definitions
In this Part —
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) an impression of an identifying feature of the person (including a dental impression);
(d) a sample of the person’s hair taken for purposes other than obtaining the person’s DNA profile;
(e) the person’s DNA profile;
“suspect” means a person who is reasonably suspected of having committed a serious offence but who has not been charged with the offence, and, for the purposes of this definition, it does not matter whether or not the person is in lawful custody.
35. Purpose of identifying procedure
36. How identifying procedures are to be done
An identifying procedure that under this Part may be done on a suspect
37. Request to adult to undergo
(1) In this section —
“suspect” means a suspect who is an adult.
(2) If an officer reasonably suspects —
(a) that a serious offence has been committed; and
(b) that an identifying particular of a suspect for the offence will afford evidence of whether or not the suspect committed the offence,
the officer may request the suspect to consent to an identifying procedure being done on the suspect to obtain the identifying particular.
(3) An officer who requests a suspect to consent to an identifying procedure being done on the suspect must at the time inform the suspect of these matters —
(a) the serious offence that the suspect is suspected of having committed and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that information derived from the procedure may be compared with or put in a forensic database;
(e) the circumstances in which destruction may be requested under section 69;
(f) that the procedure may provide evidence that could be used in a court against the suspect;
(g) that the suspect may consent or refuse to consent to the procedure;
(h) that, if the suspect consents to the procedure, he or she may withdraw consent at any time before the procedure has been completed; and
(i) that if the suspect does not consent or withdraws consent —
(i) an application may be made for authority to do the procedure against the suspect’s will; and
(ii) if authority is given the procedure may be done against the suspect’s will.
38. Request for protected person to undergo
(1) In this section —
“suspect” means a suspect who is a protected person.
(2) If an officer reasonably suspects —
(a) that an offence has been committed; and
(b) that an identifying particular of a suspect for the offence will afford evidence of whether or not the suspect committed the offence,
the officer may request a responsible person to consent to an identifying procedure being done on the suspect to obtain the identifying particular.
(3) An officer who requests a responsible person to consent to an identifying procedure being done on a suspect must at the time inform the responsible person of these matters —
(a) the offence that the suspect is suspected of having committed and to which the procedure relates;
(b) the purpose of the procedure;
(c) how the procedure will be done;
(d) that information derived from the procedure may be compared with or put in a forensic database;
(e) the circumstances in which destruction may be requested under section 69;
(f) that the procedure may provide evidence that could be used in a court against the suspect;
(g) that the responsible person may consent or refuse to consent to the procedure being done on the suspect;
(h) that, if the responsible person consents to the procedure, he or she may withdraw consent at any time before the procedure has been completed; and
(i) that if the responsible person does not consent or withdraws consent —
(i) an application may be made for authority to do the procedure against the responsible person’s will; and
(ii) if authority is given the procedure may be done against the responsible person’s will.
(4) If the suspect is a child, the making of a request, and the giving of information, under this section must be done in the presence of the suspect.
39. Request and giving of information to be recorded
(1) An officer who makes a request under section 37 or 38 must ensure that a record is made of the request, of the information given under the section and of the suspect’s or responsible person’s responses (if any).
(2) The record must be an audiovisual record or in writing.
40. When identifying procedure may be done
(1) If —
(a) under section 37 a request is made to a suspect or under section 38 to a responsible person;
(b) the suspect or responsible person is informed in accordance with section 37 or 38, as the case requires; and
(c) as the case requires, either —
(i) the suspect, if an adult, consents to the identifying procedure; or
(ii) the responsible person consents to the identifying procedure being done on the suspect who is a protected person,
then the identifying procedure may be done on the suspect.
(a) requested under section 37 to consent to an identifying procedure; and
(b) informed under that section,
does not consent or withdraws consent to the procedure, the procedure may only be done on the suspect if —
(c) in the case of a non‑intimate identifying procedure — a senior officer approves it under section 44; or
(d) in the case of an intimate identifying procedure — a JP issues an IP warrant (suspect) that authorises it.
(a) requested under section 38 to consent to an identifying procedure being done on a suspect who is a protected person; and
(b) informed under that section,
does not consent or withdraws consent to the procedure, the procedure may only be done on the suspect if a magistrate issues an IP warrant (suspect) that authorises it.
41. Consent
(1) This section applies to and in respect of a suspect if an identifying procedure may be done on the suspect under section 40(1).
(2) An adult suspect who has consented to undergoing the identifying procedure may withdraw his or her consent at any time before the procedure has been completed.
(3) A responsible person who has consented to an identifying procedure being done on a suspect who is a protected person may withdraw his or her consent at any time before the procedure on the suspect has been completed.
(4) If consent is withdrawn under this section, section 40(2) or (3) applies, as the case requires.
42.
(1) An officer may apply for the approval of a senior officer to do a non‑intimate identifying procedure on a suspect who is an adult if under section 40(2) the approval of a senior officer is needed in order to do it.
(2) An officer may apply for an IP warrant (suspect) to do an identifying procedure on a suspect —
(a) if the officer reasonably suspects that, if a request were made under section 37 or 38, the investigation of the offence concerned would be prejudiced; or
(b) if under section 40(2) or (3) an IP warrant (suspect) is needed in order to do it.
43. Application for approval
(1) In this section —
“suspect” means a suspect who is an adult.
(2) An application for an approval under this section to do a non‑intimate identifying procedure on a suspect must be made to another officer who is a senior officer and not involved in the investigation of the offence to which the proposed non‑intimate identifying procedure relates.
(3) The application may be made by remote communication.
(4) The application must —
(a) if practicable be in writing;
(b) name the suspect to whom it relates;
(c) state the offence that the suspect is suspected of having committed;
(d) specify the identifying particular that is sought and the non‑intimate identifying procedure by means of which it is to be obtained;
(e) state the grounds on which the applicant suspects —
(i) that the suspect has committed the offence; and
(ii) that the identifying particular sought will afford evidence of whether or not the suspect committed the offence.
44. Senior officer may approve
(1) On an application made under section 43 a senior officer may approve a non‑intimate identifying procedure being done on a suspect against the suspect’s will.
(2) A senior officer must not give approval unless he or she is satisfied —
(a) that the suspect is an adult;
(b) that the suspect has been informed in accordance with section 37
(c) that, in respect of the matters in section 43(4) about which the applicant is required to have a suspicion, there are reasonable grounds for the applicant to have that suspicion; and
(d) that the interests of justice justify obtaining the identifying particular specified in the application.
(3) As soon as practicable after giving approval a senior officer must make a record of —
(a) the date and time when it was given; and
(b) the reasons for giving it.
(4) An approval may be given by remote communication.
(5) An approval given under this section authorises —
(a) an officer —
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in order to do the non‑intimate identifying procedure approved;
and
(b) the doing of the non‑intimate identifying procedure on the suspect against his or her will.
45. Application for IP warrant (suspect)
(1) Only an officer may apply for an IP warrant (suspect).
(2) An application for an IP warrant (suspect) must be made in accordance with section 15
(a) to a JP if the application is in respect of an adult; or
(b) to a magistrate if the application is in respect of a protected person.
(a) name the suspect in respect of whom the warrant is wanted;
(b) state the offence that the suspect is suspected of having committed;
(c) specify the identifying particular that is sought and the identifying procedure by means of which it is to be obtained;
(d) state the grounds on which the applicant suspects —
(i) that the suspect has committed the offence; and
(ii) that the identifying particular sought will afford evidence of whether or not the suspect committed the offence.
46. Issue and effect of
(1) On an application made under section 45 a JP or magistrate, as the case requires, may issue an IP warrant (suspect) if he or she is satisfied —
(a) that, in respect of the matters in section 45(3) on which the applicant is required to have a suspicion, there are reasonable grounds for the applicant to have that suspicion; and
(b) that the interests of justice justify obtaining the identifying particular specified in the application.
(2) In the case of an application for an IP warrant (suspect) in respect of an incapable person, the magistrate may, on his or her own initiative —
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public Advocate; or
(c) if the warrant is issued, give a copy of it to the Public Advocate,
and may use remote communication to do so.
(3) An IP warrant (suspect) must contain this information —
(a) the official details of the applicant;
(b) the name of the suspect to whom it relates;
(c) the offence to which it relates;
(d) the identifying particular to be obtained and the identifying procedure by means of which it is to be obtained;
(e) the period, not exceeding 14 days, during which it may be executed;
(f) the name of the JP or magistrate who issued it; and
(g) the date and time when it was issued.
(4) An IP warrant (suspect) must be in the prescribed form.
(5) An IP warrant (suspect) authorises —
(a) an officer authorised by subsection (6) —
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in order to do the identifying procedure specified in it;
and
(b) the doing of the identifying procedure on the suspect against his or her will or against the responsible person’s will, as the case requires.
(6) The powers in subsection (5)(a) may be exercised by —
(a) if a police officer applied for the warrant, any police officer; or
(b) if a public officer applied for the warrant, any public officer who has the same functions as the applicant, or any police officer.
Part 7 — Identifying particulars of charged suspects
47. Definition
In this Part —
“charged suspect” means a person who has been charged with, but not dealt with by a court for, a serious offence and, for the purposes of this definition, it does not matter whether or not the person is in lawful custody for the offence;
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) the person’s DNA profile.
48. How identifying procedures are to be done
An identifying procedure that under this Part may be done on a suspect must be done in accordance with Part 8.
49. Identifying particulars
(1) If an officer reasonably suspects that any or all of a charged suspect’s identifying particulars —
(a) are not or may not be held by the WA Police; or
(b) are or may be needed to verify the person’s identity with identification particulars already held by the WA Police,
the officer may request the suspect to consent to an identifying procedure being done on the suspect for the purpose of obtaining one or more of the suspect’s identifying particulars.
(2) An officer who requests a charged suspect to consent to an identifying procedure being done on the suspect must at the time inform the suspect of these matters —
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared with or put in a forensic database;
(d) the circumstances in which destruction may be requested under section 69;
(e) that the procedure may provide evidence that could be used in a court against the suspect;
(f) that if the suspect does not consent or withdraws consent to the procedure —
(i) the suspect may be ordered to undergo the procedure; and
(ii) the procedure may be done on the suspect against the suspect’s will if the suspect does not obey the order.
50. Request and giving of information to be recorded
(1) A police officer who makes a request under section 49 must ensure that a record is made of the request, of the information given under the section and the charged suspect’s responses (if any).
(2) The record must be an audiovisual record or in writing.
51. When identifying procedure may be done
(1) If —
(a) under section 49 a request is made to a charged suspect;
(b) the suspect is informed in accordance with that section; and
(c) the suspect consents to the identifying procedure being done,
then the identifying procedure may be done on the suspect.
(2) If —
(a) under section 49 a request is made to a charged suspect;
(b) the suspect is informed under that section; and
(c) the suspect does not consent or withdraws consent to the identifying procedure,
the officer may order the suspect to undergo the procedure.
(3) If a charged suspect does not obey an order made under subsection (2), an officer may —
(a) if the suspect is not in custody — without a warrant arrest the suspect and detain him or her for a reasonable time in order to do the identifying procedure; and
(b) do the identifying procedure on the suspect against the suspect’s will.
Part
52. Definitions
In this Part —
“dentist” means an individual who is registered under the Dental Act 1939;
“doctor” means an individual who is a medical practitioner within the meaning of the Medical Act 1894;
“nurse” means an individual who is registered under Part 3 of the Nurses Act 1992;
“qualified person”, in relation to an identifying procedure, means a person who is qualified under the regulations to do the procedure.
53. Application
This Part applies if, under another provision of this Act, an identifying procedure must be done in accordance with this Part.
54. General requirements
(1) Before doing an identifying procedure on a person the officer who is responsible for doing it must —
(a) identify himself or herself to the person; and
(b) if it is being done against the person’s will, tell the person that it is an offence to obstruct the carrying out of it.
(2) An intimate identifying procedure on a person —
(a) must be done in circumstances giving reasonable privacy to the person; and
(b) must not involve the removal of more clothing than is necessary for doing the procedure.
(3) A suspect must not be questioned in relation to an offence while he or she is undergoing an identifying procedure.
(4) If an identifying procedure is to be done on an incapable person the officer who is responsible for doing it must arrange for the incapable person to have near him or her while the procedure is done a responsible person or another person who can provide him or her with support.
(5) The number of people who are present while an identifying procedure is being done (excluding a person who is present under subsection (4)) must not exceed the number reasonably necessary to ensure the procedure is done effectively and to ensure the safety of all present.
(6) If this Part requires a power to be exercised in relation to a person by a person with specific qualifications, the officer authorised to exercise the power may authorise a person with those qualifications to exercise the power.
(7) A person so authorised may exercise the power.
55. Sex of people doing procedures
(1) A person who does a non‑intimate identifying procedure on a person may be of either sex.
(2) A person who does an intimate identifying procedure on a person must be of the same sex as that person unless the person who does it is —
(a) a doctor;
(b) a dentist;
(c) a nurse; or
(d) if the intimate identifying procedure being done on that person is the taking of a sample of that person’s blood — a qualified person.
(3) A person who is present while an intimate identifying procedure is done by a person on another person (excluding a person who is present under section 54(4)) must, if practicable, be of the same sex as the person on whom the procedure is done.
(4) Subsection (3) does not apply if the intimate identifying procedure is the taking of a sample of the person’s blood.
(5) If this Part requires a power to be exercised in relation to a person by a person of the same sex as the person, the officer authorised to exercise the power may authorise a person of that sex to exercise the power.
(6) A person so authorised may exercise the power.
(7) If it is necessary to ascertain the sex of a person before exercising a power under this Part on the person and the sex of the person is uncertain to the officer authorised to exercise the power —
(a) the officer must ask the person to indicate whether a male or a female should exercise the power on the person and must act in accordance with the answer; and
(b) in the absence of an answer, the person is to be treated as if of the sex that the person outwardly appears to the officer to be.
56.
When doing an identifying procedure on a person, a power in the Table to this section may only be exercised by a person specified opposite the power in the Table.
Table
|
|
Power |
Who may exercise it |
|
A. |
Non‑intimate identifying procedure |
|
|
1. |
Photographing a person, other than his or her private parts |
Doctor, nurse or qualified person |
|
2. |
Obtaining a print of the person’s hands (including fingers), feet (including toes) or ears |
Qualified person |
|
3. |
Taking a buccal swab from the person |
Doctor, dentist, nurse or qualified person |
|
4. |
Taking a sample of the person’s hair other than pubic hair |
Doctor, nurse or qualified person |
|
B. |
Intimate identifying procedure |
|
|
Photographing an identifying feature of the person on his or her private parts |
Doctor, nurse or qualified person |
|
|
2. |
Taking a sample of the person’s pubic hair |
Doctor or nurse |
|
3. |
Taking a sample of blood from the person |
Doctor, nurse or qualified person |
|
4. |
Taking a dental impression of the person |
Doctor or dentist |
57. Personal details may be obtained as well
An officer who is authorised under this Part to do an identifying procedure on a person may request the person to give the officer any or all of the person’s personal details, and section 16(3) to (9), with any necessary changes, apply to and in relation to the request.
58. How samples and impressions are to be taken
(1) The taking under this Part of —
(a) a sample from a person’s body; or
(b) an impression from any part of a person’s body (including a dental impression),
must be done by the least painful method that is known or available to the person taking the sample or impression.
(2) The regulations may —
(a) prohibit or regulate methods by which samples, photographs, prints or impressions are taken or procedures are done under this Part;
(b) prescribe the equipment to be used for taking samples, photographs, prints or impressions or doing procedures under this Part.
59. Procedures may be repeated
(1) In relation to any one investigation, a person may be requested —
(a) on more than one occasion to undergo an identifying procedure;
(b) to undergo more than one identifying procedure.
(2) Without limiting subsection (1), a person may be requested to undergo the same identifying procedure on more than one occasion if, on a previous occasion, the procedure was unsucce
(3) A request under this section must be made in accordance with the other provisions of this Act.
60. People not obliged to do
Nothing in this Act requires a person —
(a) to do an identifying procedure on another person; or
(b) to take a photograph, print or impression of, or a sample from, another person’s body.
Part 9 — Use and destruction of identifying information
61. Definitions
In this Part —
“forensic database” means a DNA database or another database (whether or not on a computer and however described) that contains —
(a) information in relation to the commission of an offence that may identify the person who committed it;
(b) identifying information of people lawfully obtained before the commencement of this Act;
(c) identifying information of people (alive or deceased) obtained under this Act; or
(d) identifying information of missing persons and their relatives by blood;
“identifying information”, in relation to a person, means —
(a) any identifying particular obtained as a result of doing an identifying procedure on the person;
(b) anything used in obtaining the identifying particular such as an impression, negative, sample or swab; or
(c) the personal details of the person obtained when the identifying particular was obtained,
and, for the purposes of this definition, it does not matter in what form the information is kept.
For example: on paper or in an electronic or digitised form.
“identifying particular” has the same meaning as it has in section 11(1).
62. Identifying information of
(1) Unless subsection (2) applies, identifying information of a volunteer obtained under Part 4
(a) must not —
(i) be compared with any information in a forensic database; or
(ii) be put in a forensic database,
except in accordance with the decision of the volunteer, or responsible person, made or changed under section 20;
(b) if it is a DNA profile and may be compared with information in a DNA database — may only be compared in accordance with section 78; and
(c) must be destroyed in accordance with the decision of the volunteer, or responsible person, made or changed under section 20
(2) If a volunteer from whom identifying information is obtained under Part 4 Division 2 —
(a) is subsequently reasonably suspected of having committed a serious offence, section 66 applies to the information; or
(b) is subsequently charged with a serious offence, section 67 applies to the information,
unless the information should have been destroyed.
63. Identifying information of
(1) Identifying information of a deceased person obtained under Part 4 Division 3
(a) may be compared with other information, whether or not in a forensic database, if a coroner has so directed, but, if it is a DNA profile that may be compared with information in a DNA database, may only be compared in accordance with section 78;
(b) may be put in a forensic database if a coroner has so directed; and
(c) must be destroyed in acco
(2) For the purposes of a comparison with information in a DNA database of a DNA profile obtained from a deceased person whose personal details are known —
(a) the DNA profile is taken to have been obtained from a volunteer under Part 4 Division 2; and
(b) whether or not there are limits as to the forensic purposes for which the DNA profile may be used is decided in accordance with the direction of a coroner.
64. Identifying information of
(1) Identifying information of a person obtained under Part 4 Division 4
(a) subject to subsection (2) and with the approval of the Commissioner of Police, may be compared with other information, whether or not in a forensic database, for or in connection with the forensic purposes prescribed for the purposes of section 22(1);
(b) with the approval of the person, may be put in a forensic database; and
(c) must be destroyed if the person, having ceased to be a person who, under section 22
(2) If that identifying information is a DNA profile, it may only be compared with information in a DNA database in accordance with section 78, and for the purposes of that section the DNA profile is taken to have been obtained from a volunteer under Part 4 Division 2
(3) An approval for the purposes of subsection (1) may apply generally or in relation to a specific case or class of case
65. Identifying information of
(1) Unless subsection (2) applies, identifying information of an involved person obtained under Part 5 —
(a) must not —
(i) be compared with any other information, whether or not in a forensic database; or
(ii) be put in a forensic database,
except in accordance with, as the case requires —
(iii) the decision of the involved person, or responsible person, made under section 28 or changed under section 30
(iv) an IP warrant (involved protected person);
(b) if it is a DNA profile and may be compared with information on a DNA database — may only be compared in accordance with section 78; and
(c) must be destroyed if —
(i) within 2 years after the information is obtained no person is charged with the offence in respect of which the involved person is such a person; or
(ii) a person is so charged and criminal proceedings in respect of the charge, including proceedings on an appeal, are completed,
and destruction is requested under section 69
(2) If an involved person from whom identifying information is obtained under Part 5 —
(a) is subsequently reasonably suspected of having committed the offence in respect of which the person is an involved person and the offence is a serious offence, section 66 applies to the information; or
(b) is subsequently charged with the offence in respect of which the person is an involved person and the offence is a serious offence, section 67
unless the information should have been destroyed.
66. Identifying information of
(1) In this section —
“relevant offence”, in relation to a suspect, means —
(a) the offence that the suspect is suspected of having committed and in relation to which identifying information is obtained under Part 6; or
(b) an offence arising out of the same circumstances as that offence.
(2) Unless subsection (3) applies, identifying information of a suspect obtained under Part 6 —
(a) may be compared with other information, whether or not in a forensic database, as soon as it is obtained, but, if it is a DNA profile, may only be compared with information in a DNA database in accordance with section 78;
(b) may be put in a forensic database as soon as it is obtained; and
(c) must be destroyed if —
(i) within 2 years after the information is obtained the suspect is not charged with a relevant offence; or
(ii) the suspect is so charged but the charge is finalised without a finding of guilt,
and destruction is requested under section 69 by or on behalf of the suspect.
(3) If a suspect from whom identifying information is obtained under Part 6 is subsequently charged with a relevant offence, section 67 applies to the information unless the information should have been destroyed.
67. Identifying information of
(1) Identifying information of a suspect obtained under Part 7 —
(a) may be compared with other information, whether or not in a forensic database, as soon as it is obtained, but, if it is a DNA profile, may only be compared with information in a DNA database in accordance with section 78;
(b) may be put in a forensic database as soon as it is obtained; and
(c) subject to subsection (3), must be destroyed if the charge against the suspect is finalised without a finding of guilt and destruction is requested under section 69
(2) Subsection (1) also applies to and in respect of identifying information of a charged suspect (within the meaning of Part 7) lawfully obtained before the commencement of Part 7.
(3) Subsection (1)(c) does not apply to identifying information of a suspect if, in relation to the offence with which the suspect is charged —
(a) the suspect is found to be not mentally fit to stand trial under the Criminal Law (Mentally Impaired Defendants) Act 1996; or
(b) the suspect is found not guilty of the offence on account of unsoundness of mind.
(4) If identifying information of a person is not destroyed because of the operation of subsection (3) and the person —
(a) is subsequently reasonably suspected of having committed a serious offence, section 66 applies to the information; or
(b) is subsequently charged with a serious offence, this section applies to the information.
68. Results of matched information to be made available to suspects
(1) If —
(a) identifying information is obtained under this Act from a person who, either then or subsequently, is reasonably suspected of having committed an offence; and
(b) the information is compared with and found to match information, whether or not in a forensic database, obtained otherwise in relation to the investigation of the offence,
the officer in charge of the investigation of the offence must ensure that the results of the comparison are made available
(2) The results of the comparison must be made available to the suspect as soon as practicable after they are obtained unless to do so would prejudice the investigation of any offence.
69. Request for destruction of identifying information
If another provision of this Act refers to the destruction of identifying information being requested under this section, the request may be made —
(a) if the identifying information is of a person who is an adult at the time the request may be made — by the adult;
(b) if the identifying information is of a person who is a child at the time the request may be made — by a responsible person; or
(c) if the identifying information is of a person who is an incapable person at the time the request may be made — by a responsible person or the Public Advocate,
and must be made to the Commissioner of Police.
70. Destroying identifying information
(1) If this Part requires identifying information to be destroyed on the occurrence of an event or on a request, it must be destroyed as soon as practicable after the event occurs or the request is made.
(2) If this Part requires identifying information to be destroyed, all means of connecting the identifying information with the person whose identifying information it is must be destroyed.
(3) If this Part requires identifying information to be destroyed, identifying information that consists of a DNA profile of a person may be kept in a DNA database for statistical purposes if other identifying information that would enable the identity of the person to be discovered is destroyed.
71. Responsibility for destroying identifying information
(1) If information or anything else that must be destroyed under this Act is in the possession of the WA Police, the Commissioner of Police must ensure it is destroyed.
(2) If information or anything else that must be destroyed under this Act is in the possession of a person other than the WA Police, that person must ensure it is destroyed.
(3) If information or anything else that must be destroyed under this Act is in a forensic database, the person who controls or manages the database must ensure it is destroyed.
72. Supreme Court may order information not to be destroyed
(1) If the Supreme Court is satisfied that there is good reason to keep identifying information after the time when under this Part it must be destroyed —
(a) the court may order that it be kept for a period set by the court; and
(b) that order has effect according to its terms despite anything else in this Part.
(2) The Supreme Court may at any time amend or cancel such an order.
(3) A person whose identifying information is the subject of an application for an order under this section is entitled to be heard on the application.
73. Disclosure of identifying information
(1) A person who has access, or has had access, to identifying information obtained under this Act, whether or not in a forensic database, may only disclose the information in these circumstances —
(a) if the person is the person to whom the information relates;
(b) if the person to whom the information relates consents in writing to the disclosure;
(c) for the purpose of the medical treatment of the person to whom the information relates;
(d) if the information is already public;
(e) for a forensic purpose where the investigation or identification is being done by the WA Police or by other law enforcement officers prescribed by the regulations;
(f) for the purpose of a decision as to whether to prosecute an offence;
(g) for the purpose of criminal proceedings for an offence;
(h) for the purpose of the medical treatment of a victim of an offence that the suspect is reasonably suspected to have committed;
(i) for the purpose of an investigation or inquest under the Coroners Act 1996;
(j) for the purpose of civil or disciplinary proceedings that relate to the way in which the identifying procedure that resulted in the information was carried out;
(k) for the purpose of an investigation under the Parliamentary Commissioner Act 1971 into the exercise of any power under this Act;
(l) in accordance with an arrangement entered into under section 91(1);
(m) in accordance with the Mutual Assistance in Criminal Matters Act 1987, or the Extradition Act 1988, of the Commonwealth;
(n) for a purpose prescribed by the regulations.
(2) This section does not apply in relation to information that cannot be used to discover the identity of a person.
(3) A person who has access, or has had access, to identifying information obtained under this Act, whether or not in a forensic database, must not disclose the information except as provided by this section.
Penalty: Imprisonment for 2 years.
74. Use of illegal identifying information
(1) In this section —
“illegal identifying information” means identifying information —
(a) that has been obtained in contravention of this Act or a corresponding law of a participating jurisdiction; or
(b) that is required by this Act or a corresponding law of a participating jurisdiction to have been destroyed but has not been destroyed.
(2) For the purposes of this section a person uses illegal identifying information if the person —
(a) supplies the information to another person —
(i) to be analysed;
(ii) to be put in a forensic database; or
(iii) to be compared with other information, whether or not in a forensic database;
(b) analyses the information;
(c) compares the information with other information, whether or not in a forensic database;
(d) puts the information in a forensic database; or
(e) leaves the information in a forensic database.
(3) A person who knows or reasonably ought to know that identifying information is illegal identifying information must not use the information.
Penalty: Imprisonment for 2 years.
75. Improper use of
A person who —
(a) compares information obtained in accordance with this Act with other information, whether or not in a forensic database, otherwise than in accordance with this Part; or
(b) puts information obtained in accordance with this Act in a forensic database otherwise than in accordance with this Part,
commits an offence.
Penalty: Imprisonment for 2 years.
Part 10 — DNA databases
76. Definitions
In this Part —
“crime scene index” means an index of DNA profiles derived from material obtained from —
(a) a place (whether within or outside Australia) where an offence under the law of this State, another State, a Territory or the Commonwealth was, or is reasonably suspected to have been, committed;
(b) on or in the body of a person who was involved when such an offence was committed, whether as a suspect for, or as a victim of, or as a witness to, the offence;
(c) on or in anything worn or carried by a person referred to in paragraph (b) at the time of the offence; or
(d) anything in respect of which the offence was committed or that was used in committing, or in connection with committing, the offence,
together with information about when and where the DNA profile was obtained, but does not include the DNA profile of a person reasonably suspected to have committed the offence that was obtained from that person;
“DNA database” means a database (whether or not on a computer and however described) that contains —
(a) the following indexes of DNA profiles —
(i) a crime scene index;
(ii) a missing persons index;
(iii) an offenders index;
(iv) a suspects index;
(v) an unknown deceased persons index;
(vi) a volunteers (limited purposes) index;
(vii) a volunteers (unlimited purposes) index;
(b) a statistical index; and
(c) if an index is prescribed by the regulations for the purposes of this definition — that index;
“DNA database index” means an index of DNA profiles mentioned in paragraph (a) of the definition of “DNA database”;
“missing persons index” means an index of the DNA profiles of —
(a) missing people; or
(b) volunteers who are relatives by blood of such people,
together with the personal details of the people whose profiles they are to the extent that those details are known;
“offenders index” means an index of the DNA profiles obtained —
(a) under Part 6 or 7 from suspects each of whom has been subsequently found guilty of the offence that he or she was suspected of having committed;
(b) under Schedule 1 clause 6 from remand prisoners each of whom has been subsequently found guilty of the offence that he or she was suspected of having committed;
(c) under Schedule 1 clause 6
(d) under the corresponding laws of participating jurisdictions from people who have been convicted of offences under the laws of those jurisdictions,
together with the personal details of the people whose profiles they are;
“statistical index” means an index of information —
(a) that is obtained from the analysis of material obtained from people under this Act or under the corresponding laws of participating jurisdictions;
(b) that does not contain the personal details of any person whose DNA profile is in the index;
(c) that is compiled for statistical purposes; and
(d) that cannot be used to discover the identity of people from whom the material was obtained,
and includes a statistical index lawfully compiled for statistical purposes before the commencement of this Part;
“suspects index” means an index of the DNA profiles obtained —
(a) under Part 6 or 7 from suspects each of whom has not been found guilty of the offence that he or she was suspected of having committed;
(b) under Schedule 1 clause 6
(c) under the corresponding laws of participating jurisdictions from people who are suspected of having committed, but who have not been convicted of, offences under the laws of those jurisdictions,
together with the personal details of the people whose profiles they are;
“unknown deceased persons index” means an index of the DNA profiles obtained from deceased people whose personal details are unknown, together with information about when and where the DNA profile was obtained;
“volunteers (limited purposes) index” means an index of the DNA profiles obtained —
(a) under Part 4 Division 2 from volunteers;
(b) under Part 5 from victims and witnesses;
(c) under the corresponding laws of participating jurisdictions from similar people; or
(d) under Part 4 Division 3, or under the corresponding laws of participating jurisdictions, from deceased people,
in respect of which there are limits as to the forensic purposes for which they may be used, together with the personal details of the people whose DNA profiles they are;
“volunteers (unlimited purposes) index” means an index of the DNA profiles obtained —
(a) under Part 4
(b) under Part 5 from victims and witnesses;
(c) under the corresponding laws of participating jurisdictions from similar people; or
(d) under Part 4 Division 3
in respect of which there are no limits as to the forensic purposes for which they may be used, together with the personal details of the people whose DNA profiles they are.
77. DNA profiles lawfully obtained before commencement of Part
A DNA profile of a person lawfully obtained for a forensic purpose before the commencement of this Part and lawfully retained may be put in the statistical index for statistical purposes if the information put in the index does not include the personal details of that person.
78. Permitted comparisons with DNA database indexes
(1) A DNA profile, whether or not in a DNA database, must not be compared with a DNA profile that is in a DNA database index if the Table to this section does not permit the comparison.
(2) If the Table to this section permits a comparison “if within limit”, the comparison must not be made if the forensic purposes for which the DNA profile may be used, as decided under Part 4 Division 2 or Part 5, do not include the purpose for which the comparison is sought to be made.
Table showing permissible comparisons
|
DNA profile to be compared with information in DNA database |
Information in DNA database |
|||||||
|
A |
B |
C |
D |
E |
F |
G |
||
|
Crime scene index |
Suspects index |
Volunteers (limited purposes) index |
Volunteers (unlimited purposes) index |
Offenders index |
Missing persons index |
Unknown deceased persons index |
||
|
1. |
From crime scene |
Yes |
Yes |
If within limit |
Yes |
Yes |
Yes |
Yes |
|
2. |
Of suspect |
Yes |
No |
No |
Yes |
Yes |
Yes |
Yes |
|
3. |
Of volunteer or involved person (limited purposes) |
If within limit |
No |
No |
No |
If within limit |
If within limit |
If within limit |
|
4. |
Of volunteer or involved person (unlimited purposes) |
Yes |
No |
No |
No |
Yes |
Yes |
Yes |
|
5. |
Of offender |
Yes |
Yes |
No |
Yes |
Yes |
Yes |
Yes |
|
6. |
Of missing person |
Yes |
Yes |
If within limit |
Yes |
Yes |
Yes |
Yes |
|
7. |
Of unknown deceased person |
See s. 63 |
See s. 63 |
If within limit |
See s. 63 |
See s. 63 |
See s. 63 |
See s. 63 |
79. Duties of database managers
(1) In this section —
“database manager” means a person who has the control and management of a DNA database.
(2) A database manager must ensure that the DNA database is used only for the following purposes —
(a) to contain only the information that under this Act may be put in the database together with any information that is reasonably necessary to administer the database;
(b) to compare the information in the database with other information, whether or not in the database, in accordance with this Act;
(c) for the purposes of an arrangement entered into under section 91(1).
80. Operators of DNA databases to be authorised
(1) The Minister, in writing, may authorise a person, to create, keep, operate, control or manage a DNA database.
(2) The Minister may at any time cancel such an authorisation.
(3) The Minister is not to authorise a police officer under subsection (1).
(4) A person must not create, keep, operate, control or manage a DNA database except with the written authority of the Minister.
Penalty: $250 000.
Part 11 — Admissibility of evidence
81. Evidence of refusal of consent etc.
(1) Evidence that a person refused to or did not consent, or withdrew consent, to an identifying procedure being done on the person is not admissible in proceedings against the person except —
(a) in proceedings against him or her for an offence alleged to have been committed while the identifying procedure was being done on him or her; or
(b) to establish or rebut an allegation that an officer investigating the commission of an offence acted contrary to law in doing the investigation.
(2) Evidence that a responsible person refused to or did not consent, or withdrew consent, to an identifying procedure being done on a protected person is not admissible in proceedings against the responsible person, or the protected person, except —
(a) in proceedings against him or her for an offence alleged to have been committed while the identifying procedure was being done on the protected person; or
(b) to establish or rebut an allegation that an officer investigating the commission of an offence acted contrary to law in doing the investigation.
82. Evidence of conduct of procedure
Evidence of how an identifying procedure was done is admissible in proceedings in court against a person —
(a) to establish or rebut an allegation that unreasonable force was used to do the procedure;
(b) in connection with deciding the admissibility of a confession or other evidence adverse to the person that the person alleges was induced or obtained by the use of unreasonable force; or
(c) to establish or rebut an allegation that the procedure was not done in accordance with this Act.
83. Evidence obtained i
(1) This section applies to the following evidence —
(a) anything taken (including a print, photograph, sample, impression or record) in the course of an identifying procedure; and
(b) any evidence derived from a thing referred to in paragraph (a) or the procedure.
(2) This section does not apply to evidence to which section 84 applies.
(3) If —
(a) an identifying procedure is done on a person; and
(b) any requirement of this Act in relation to doing the procedure, including a requirement that arises before or after the actual procedure, is contravened,
evidence to which this section applies is not admissible in any criminal proceedings against the person in a court unless —
(c) the person does not object to the admission of the evidence;
(d) the court decides otherwise under section 86; or
(e) the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to the age of a child.
84. Evidence
If under Part 9 identifying information must be destroyed at a certain time, evidence of that information —
(a) is not admissible in a court after that time if it is adduced by the prosecution against a person; but
(b) may be admitted if it is adduced by that person.
85. Evidence from illegal use of information
Any information obtained as a result of —
(a) identifying information being put in a DNA database otherwise than in accordance with this Act; or
(b) identifying information being compared with other identifying information, whether or not in a DNA database, otherwise than in accordance with this Act,
is not admissible in criminal proceedings against a person in a court unless the court decides otherwise under section 86.
86. Court may admit inadmissible evidence
(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2) The court may decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court is to take into account —
(a) any objection to the evidence being admitted by the person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence is relevant;
(c) the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence was intentional or reckless;
(e) whether any contravention of this Act in obtaining the evidence arose from an honest and reasonable mistake of fact;
(f) the probative value of the evidence;
(g) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its admission.
Part 12 — Enforcement elsewhere in Australia
87. Definitions
In this Part —
“authorised officer”, in relation to a participating jurisdiction, means a person holding an office in that jurisdiction that is prescribed under section 88;
“corresponding law” means a law prescribed under section 88 to be a corresponding law;
“forensic order” means an order or warrant, made or issued under a corresponding law in respect of a person, that authorises the examination of, and the obtaining of material from, the person’s body for forensic purposes;
“participating jurisdiction” means another State, a Territory or the Commonwealth in which a corresponding law is in force;
“Registrar” means a person prescribed under section 88 to be the Registrar.
88. Prescribing corresponding laws etc.
The regulations may —
(a) prescribe a law of another State, a Territory or the Commonwealth that relates to the examination of, and the obtaining of material from, people’s bodies for forensic purposes to be a corresponding law for the purposes of this Act;
(b) prescribe an office in a participating jurisdiction the holder of which is an authorised officer for the purposes of this Part;
(c) prescribe an office in this State, or in a participating jurisdiction, the holder of which is the Registrar for the purposes of this Part; and
(d) prescribe any matters that are necessary or convenient to be prescribed in relation to the registration and carrying out of forensic orders.
89. Registration of forensic orders
(1) An authorised officer in a participating jurisdiction may request the Registrar to register, for the purposes of this Part, a forensic order that has been made under a corresponding law of that jurisdiction.
(2) A request for the registration of a forensic order must be in writing and be accompanied by a copy of the order, certified by the person who issued it.
(3) The Registrar must accede to a request made under this section for the registration of a forensic order if satisfied that the order was made in accordance with the corresponding law concerned.
(4) On the request of an authorised officer in a participating jurisdiction the Registrar may at any time cancel the registration of a forensic order.
90. Forensic orders registered in WA may be executed in WA
(1) In this section —
“registered forensic order” means a forensic order that is registered under section 89 for the purposes of this Part.
(2) A registered forensic order has effect in this State according to its terms and, subject to this section, may be carried out accordingly.
(3) A police officer may carry out a registered forensic order in this State.
(4) If a registered forensic order authorises the carrying out of an identifying procedure on a person, the procedure must be done in accordance with Part 8.
(5) If a registered forensic order authorises the carrying out of acts on a person other than acts that may be done in the course of an identifying procedure under this Act, the order must be carried out in accordance with the corresponding law under which it was made.
91. Arrangements for sharing information
(1) The Minister may, with a Minister of a participating jurisdiction who is responsible for the administration of a corresponding law, enter into arrangements under which —
(a) information from the DNA database of this State is transmitted to the authorised officer of that jurisdiction;
(b) information from the DNA database of that jurisdiction is transmitted to the Commissioner of Police;
(c) for the purposes of law enforcement in that jurisdiction, law enforcement officers of that jurisdiction are entitled to have access to identifying and other information, whether or not in a forensic database, held by the WA Police; or
(d) for the purposes of law enforcement in this State, law enforcement officers in this State are permitted to have access to identifying and other information, whether or not in a forensic database, held by law enforcement officers in that jurisdiction.
(2) Information that is transmitted under an arrangement made 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 Act or a corresponding law requires the information or the forensic material to which it relates to be destroyed.
Part 13 — Miscellaneous
92. Legal protection for people
(1) This section does not apply to a person to whom section 137 of the Police Act 1892 applies.
(2) In this section a reference to the doing of anything includes a reference to an omission to do anything.
(3) An action in tort does not lie against a person for anything that the person has done, in good faith, in the exercise or purported exercise of a power under this Act.
(4) The protection given by this section applies even though the thing done as described in subsection (3) may have been capable of being done whether or not this Act had been enacted.
93. Regulations
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may —
(a) provide for the procedure to be followed in and in relation to doing an identifying procedure;
(b) create offences with statutory penalties not exceeding $5 000.
94. Review of Act
(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 5 years from its commencement.
(2) The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause the report to be laid before each House of Parliament.
Part 14 — Temporary provisions
95. Identifying particulars may be taken from people in custody and others (Schedule 1
(1) Schedule 1 has effect.
(2) This section and Schedule 1 cease to have effect on the third anniversary of the commencement of this section.
96. Consequential amendments (Schedule 2
Schedule
1. Definitions
In this Schedule —
“identifying information”, in relation to a person, means —
(a) any identifying particular obtained as a result of doing an identifying procedure on the person;
(b) the personal details of the person obtained when the identifying particular was obtained;
“identifying particular”, in relation to a person, means —
(a) a print of the person’s hands (including fingers), feet (including toes) or ears;
(b) a photograph of the person (including of an identifying feature of the person);
(c) the person’s DNA profile;
“remand prisoner” means a person who has been charged with, but not convicted of, a serious offence and who has been remanded in custody by a court in relation to the offence;
“serious offender” means a person who has been found —
(a) guilty of a serious offence; or
(b) not guilty of a serious offence on account of unsoundness of mind.
2. How identifying procedures are to be done
An identifying procedure that under this Schedule may be done on a person, whether or not against the will of the person, must be done in accordance with Part 8
3. Request for prisoner on remand
(1) If a police officer reasonably suspects that any or all of a remand prisoner’s identifying particulars —
(a) are not or may not be held by the WA Police; or
(b) are or may be needed in order to verify the prisoner’s identity with identifying particulars already held by the WA Police,
the police officer may request the prisoner to consent to an identifying procedure being done on the prisoner for the purpose of obtaining one or more of the prisoner’s identifying particulars.
(2) A police officer who requests a remand prisoner to consent to an identifying procedure being done on the prisoner must at the time inform the prisoner of these matters —
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared with or put in a forensic database;
(d) the circumstances in which destruction may be requested under section 69
(e) that the procedure may provide evidence that could be used in a court against the prisoner;
(f) that if the prisoner does not consent or withdraws consent to the procedure —
(i) the prisoner may be ordered to undergo the procedure; and
(ii) the procedure may be done on the prisoner against the prisoner’s will if the prisoner does not obey the order.
4. Request for serious offender to undergo identifying procedure
(1) This clause applies to a serious offender who is —
(a) in custody in a detention centre (as defined in section 3 of the Young Offenders Act 1994), whether or not serving a sentence;
(b) subject to a supervised release order made under the Young Offenders Act 1994;
(c) in custody in a prison (as defined in the Prisons Act 1981), whether or not serving a sentence;
(d) subject to a community order made under the Sentencing Act 1995;
(e) subject to an early release order made under the Sentence Administration Act 1995 or the Sentence Administration Act 1999; or
(f) subject to a custody order made under the Criminal Law (Mentally Impaired Defendants) Act 1996.
(2) If a police officer reasonably suspects that any or all of a serious offender’s identifying particulars —
(a) are not or may not be held by the WA Police; or
(b) are or may be needed in order to verify the offender’s identity with identifying particulars already held by the WA Police,
the police officer may request the offender to consent to an identifying procedure being done on the offender for the purpose of obtaining one or more of the offender’s identifying particulars.
(3) A police officer who requests a serious offender to consent to an identifying procedure being done on the offender must at the time inform the offender of these matters —
(a) the purpose of the procedure;
(b) how the procedure will be done;
(c) that information derived from the procedure may be compared with or put in a forensic database;
(d) the circumstances in which destruction may be requested under section 69;
(e) that the procedure may provide evidence that could be used in a court against the offender;
(f) that if the offender does not consent or withdraws consent to the procedure —
(i) the offender may be ordered to undergo the procedure; and
(ii) the procedure may be done on the offender against the offender’s will if the offender does not obey the order.
5. Request and giving of information to be recorded
(1) A police officer who makes a request under clause 3 or 4
(2) The record must be an audiovisual record or in writing.
6. When identifying procedure may be done
(1) If —
(a) under clause 3 a request is made to a remand prisoner or under clause 4 to a serious offender;
(b) the prisoner or offender is informed in accordance with clause 3 or 4, as the case requires; and
(c) the prisoner or offender consents to the identifying procedure being done,
then the identifying procedure may be done on the prisoner or offender, as the case requires.
(2) If —
(a) under clause 3 a request is made to a remand prisoner or under clause 4 to a serious offender;
(b) the prisoner or offender is informed in accordance with clause 3 or 4, as the case requires; and
(c) the prisoner or offender does not consent or withdraws consent to the identifying procedure,
the police officer may order the prisoner or offender, as the case requires, to undergo the procedure.
(3) If a remand prisoner does not obey an order made under subclause (2), a police officer may do the identifying procedure on the prisoner against the prisoner’s will.
(4) If a serious offender does not obey an order made under subclause (2), a police officer may —
(a) if the offender is not in custody — without a warrant arrest and detain the offender for a reasonable time in order to do the identifying procedure; and
(b) do the identifying procedure on the offender against the offender’s will.
(5) Identifying information of a remand prisoner or serious offender —
(a) may be compared with other information, whether or not in a forensic database, as soon as it is obtained, but, if it is a DNA profile, may only be compared with information in a DNA database in accordance with section 78
(b) may be put in a forensic database as soon as it is obtained; and
(c) must be destroyed if —
(i) in the case of a remand prisoner — the charge, or all charges if there are more than one, in respect of which the prisoner was remanded in custody are finalised without a finding of guilt and destruction is requested under section 69 by or on behalf of the prisoner; or
(ii) in the case of a serious offender — the serious offender ceases to be a serious offender and destruction is requested under section 69 by or on behalf of the offender.
7. Department of Justice CEO to assist WA Police
(1) In order to facilitate the exercise of the powers in this Schedule, the chief executive officer of the appropriate department —
(a) is to provide the Commissioner of Police with such information as the Commissioner reasonably needs;
(b) is to permit police officers to have reasonable access to detention centres, prisons, community corrections centres and other places under the control and management of that department; and
(c) is to provide reasonable assistance to police officers.
(2) In subclause (1) —
“appropriate department
(a) the department principally assisting the Minister who administers the Young Offenders Act 1994; or
(b) the department principally assisting the Minister who administers the Prisons Act 1981.
8. Destroying identifying information
Sections 69
Schedule
1. Bail Act 1982
Section 12 is amended by deleting “and section 50AA of the Police Act 1892.” and inserting instead —
“
, section 50AA of the Police Act 1892 and Parts 6 and 7 of the Criminal Investigation (Identifying People) Act 2002.
”.
2. Conservation and Land Management Act 1984
(1) Section 124(1)(c) is deleted.
(2) Section 124(2) is repealed and the following subsection is inserted instead —
“
(2) The offices of ranger and conservation and land management officer are each prescribed to be public officers for the purposes of the Criminal Investigation (Identifying People) Act 2002 and as such may exercise the powers in Part 3 of that Act.
”.
(3) Section 124(3) is repealed.
3. The Criminal Code
Section 236 of The Criminal Code is amended as follows:
(a) in the third paragraph, by deleting “of the person’s blood, hair (from any part of the body), nails or saliva, or”;
(b) in the third paragraph, by deleting “or obtainable by a buccal swab,”;
(c) after the last paragraph, by inserting the following paragraph —
“
This section does not authorise the taking of an identifying particular (within the meaning of section 34
”.
4. Parks and Reserves Act 1895
(1) Section 7A(1) is amended as follows:
(a) after paragraph (b), by inserting —
“ and ”;
(b) after paragraph (c), by deleting “; and” and inserting a comma instead;
(c) by deleting paragraph (d).
(2) After section 7A(1) the following subsection is inserted —
“
(1a) The offices of member of the Board and ranger appointed under section 7 are each prescribed to be public officers for the purposes of the Criminal Investigation (Identifying People) Act 2002 and as such may exercise the powers in Part 3 of that Act.
”.
5. Police Act 1892
(1) Section 50 is repealed.
(2) Section 50AA(1) is amended after “summary conviction,” by inserting —
“
other than an offence that is a serious offence within the meaning of the Criminal Investigation (Identifying People) Act 2002,
”.
6. Waterways Conservation Act 1976
(1) Section 63(7) is amended as follows:
(a) after paragraph (b), by inserting —
“ and ”;
(b) after paragraph (c), by deleting “; and” and inserting a comma instead;
(c) by deleting paragraph (d).
(2) After section 63(7) the following subsection is inserted —
“
(7a) The offices referred to in subsection (1) are each prescribed to be public officers for the purposes of the Criminal Investigation (Identifying People) Act 2002 and as such may exercise the powers in Part 3 of that Act.
”.
7. Wildlife Conservation Act 1950
(1) Before section 20(2) the following subsection is inserted —
“
(1) The office of wildlife officer is prescribed to be a public officer for the purposes of the Criminal Investigation (Identifying People) Act 2002 and as such may exercise the powers in Part 3
”.
(2) Section 20(2) is amended as follows:
(a) after paragraph (b), by deleting the semicolon and inserting a full stop instead;
(b) by deleting paragraph (c).
