Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

3.3.6. Queensland
Forensic procedures in Queensland are governed by Chapter 8A of the Police Powers and Responsibilities Act 2000
(Qld). There are several significant differences between the Queensland and New South Wales legislation:
• The Queensland Act does not have separate provisions for volunteers. Police can request any person, whether
a suspect or not, to undergo a forensic procedure. There are no criteria governing when police may make such
a request – any person may be approached and asked to provide a DNA sample.
• There are however criteria for conducting procedures in the absence of consent. Police can only apply for a
court order authorising a forensic procedure if the officer is satisfied the procedure may provide evidence of
the commission of an indictable offence. The magistrate must consider whether the procedure is justified in all
the circumstances, taking into account the rights and liberties of the suspect, the public interest, and the other
factors set out in the Commonwealth Act. 147 Where proceedings against a person for an indictable offence
have commenced, the person’s DNA can be taken with the approval of a senior police officer rather than a
court. 148
• DNA samples can only be taken by buccal swab or hair sample. 149 However, there are some types of
procedures which are permitted in Queensland which are not covered by the New South Wales Act, including
cavity searches, removing a substance or thing from a body cavity, taking a blood or urine sample and taking
an X-ray. 150
• Children over the age of 14 and adults with impaired capacity can consent to forensic procedures, provided a
support person is present when the relevant information is provided, and the person being asked to consent is
given the opportunity to speak to the support person in private. 151
• The Act provides for a Queensland DNA database. A very broad comparison of profiles is allowed. The
Commissioner of Police may transfer information from one index to another, use information in one index for
the purposes of another index, compare information within an index and compare information in one index with
information in another. 152 There are more restrictive matching rules for comparison of DNA profiles using the
CrimTrac database. 153
• There are no specific safeguards for Aboriginal or Torres Strait Islander people.
3.3.7. Northern Territory
Forensic examinations, including DNA sampling, can be conducted under Division 7 of the Police Administration Act
(NT) and the Juvenile Justice Act (NT). Forensic procedures in the Northern Territory are less regulated than anywhere
else in Australia, so there is significant disparity between the Northern Territory and New South Wales laws:
• Buccal swabs are classified as non-intimate procedures. 154
• Any person can undergo a non-intimate procedure by consent. There are no criteria governing when police
may make such a request. 155 In the absence of consent, non-intimate procedures can be carried out by order
of a senior police officer. It is enough that police reasonably suspect the person has committed a crime, or
that the person has been charged with an offence punishable by imprisonment – there is no requirement,
for example, that DNA analysis be of some investigative value, or that asking for consent is justified in the
circumstances. 156
• Intimate procedures can be carried out by consent or by order of a magistrate. The person must have
been charged with an offence, and police must believe the procedure may provide evidence relating to the
offence. 157
• A magistrate’s approval is required to conduct a procedure on a child aged under 14, but a non-intimate
procedure, including a DNA sample, can be conducted on a child aged 14 or above with the approval of a
senior police officer. The child must be a suspect or be charged with committing a crime. 158
• DNA samples are taken by buccal swab only, and can be taken by force if necessary. 159 As in Queensland,
a number of procedures are allowed which are not covered by the New South Wales Act, including internal
examinations of the body, taking from the body a substance on or in the body, taking a urine sample and
taking an X-ray. 160
• Comparison of DNA profiles is essentially unregulated – the Commissioner of Police may maintain databases
of any information obtained from carrying out forensic procedures. 161 Samples can be subject to any analysis
the Commissioner thinks fit, and any information obtained can be recorded on the database. 162 There are also
provisions for sharing information kept on the database with other jurisdictions. 163
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000