Section 105.43 Criminal Code Act | Recording Detainee Details


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The Legislation

Section 105.43 of the Criminal Code Act 1995 (Cth) is Recording Detainee Details and is extracted below.

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105.43  Taking fingerprints, recordings, samples of handwriting or photographs

(1)  A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.

Note:          A contravention of this subsection may be an offence under section 105.45.

(2)  A police officer who is of the rank of sergeant or higher may take identification material from the person, or cause identification material from the person to be taken, if:

(a)  the person consents in writing; or

(b)  the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person’s identity as the person specified in the order.

(3)  A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4)  Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

unless a Federal Magistrate orders that the material be taken.

Note:          A contravention of this subsection may be an offence under section 105.45.

(5)  In deciding whether to make such an order, the Federal Magistrate must have regard to:

(a)  the age, or any disability, of the person; and

(b)  such other matters as the Federal Magistrate thinks fit.

(6)  The taking of identification material from a person who:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

must be done in the presence of:

(c)  a parent or guardian of the person; or

(d)  if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Note 1:       For appropriate person, see subsection (11).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(7)  Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:

(a)  subsections (8) and (9) are satisfied; or

(b)  subsection (8) or (9) is satisfied (but not both) and a Federal Magistrate orders that the material be taken.

In deciding whether to make such an order, the Federal Magistrate must have regard to the matters set out in subsection (5).

(8)  This subsection applies if the person agrees in writing to the taking of the material.

(9)  This subsection applies if either:

(a)  a parent or guardian of the person; or

(b)  if a parent or guardian is not acceptable to the person—another appropriate person;

agrees in writing to the taking of the material.

Note:          For appropriate person, see subsection (11).

(10)  Despite this section, identification material may be taken from a person who:

(a)  is at least 18 years of age; and

(b)  is capable of managing his or her affairs;

if the person consents in writing.

(11)  A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:

(a)  is capable of representing the subject’s interests; and

(b)  as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and

(c)  is none of the following:

(i)  an AFP member;

(ii)  an AFP employee (within the meaning of the Australian Federal Police Act 1979);

(iii)  a member (however described) of a police force of a State or Territory;

(iv)  an officer or employee of the Australian Security Intelligence Organisation.