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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES AMENDMENT (FORENSIC PROCEDURES) BILL 2001
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS INTRODUCED
CRIMES AMENDMENT (FORENSIC PROCEDURES) BILL 2001
General Outline
This Bill contains amendments in Schedule 1 to Parts 1A and 1D of the Crimes Act
1914 and in Schedule 2 to the Mutual Assistance in Criminal Matters Act 1987.
The vast majority of the Bill relates to amendments to Part 1D of the Crimes Act
1914. These amendments are based on the February 2000 draft Model Forensic
Procedures Bill (hereafter the ‘2000 Model Bill’) developed by the Model
Criminal Code Officers’ Committee under the auspices of the Standing Committee
of Attorneys-General. The existing forensic procedures provisions in Part 1D of
the Crimes Act 1914 are based on the 1995 version of the Model Forensic
Procedures Bill (hereafter the ‘1995 Model Bill’).
2.
The 2000 Model Bill was developed during 1999 after months of
nationwide consultation, including meetings with the Federal and New South
Wales Privacy Commissioners, CrimTrac and law enforcement agencies. Similar
legislation in other countries, including Canada, the United Kingdom, the USA,
New Zealand and some European countries was reviewed during the preparation of
the 2000 Model Bill. This Bill, which implements the 2000 Model Bill, provides
for an effective and accountable system for the taking and matching of forensic
material on the national DNA database system.
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3.
(a)
The objects of this Bill are:
to amend existing forensic procedures provisions in Part 1D of the Crimes
Act 1914 to facilitate the establishment of the CrimTrac national DNA
database system by enabling the taking of forensic material from any serious
convicted offender still under sentence;
(b)
to provide for safeguards in Part 1D of the Crimes Act 1914 in relation to the
taking of forensic material from volunteers for use in criminal investigations
and placement of DNA information on the national DNA database system;
(c)
to provide in Part 1D, procedures for the matching and use of DNA
information obtained from forensic material designed to ensure there is no
misuse of that information;
(d)
to provide in Part 1A for adequate procedures for the making of orders by
State and Territory judges, magistrates and other court officers in relation to
criminal matters, whether they be orders authorising the carrying out of
forensic procedures, or other matters;
(e)
to provide in Part 1D of the Crimes Act 1914 for appropriate
interjurisdictional recognition of orders under that Part or under equivalent
State and Territory legislation; and
(f)
to make minor amendments to the Mutual Assistance in Criminal Matters Act
1987 to ensure that Australia can fulfil its international obligations in
providing assistance to foreign countries in the enforcement of foreign orders
which preserve suspected proceeds of crime.
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Forensic Procedures
4.
New forensic procedures are the primary focus of the Bill. Essentially, the
Bill builds on existing Part 1D of the Crimes Act 1914 which outlines forensic
procedures with respect to the taking of forensic material from persons suspected
of committing Commonwealth offences. At present, Part 1D also provides a very
restrictive procedure for the taking of forensic material from convicted offenders
and does not preclude the taking of forensic material from volunteers or the use of
such material on a DNA database. However, it does not contain detailed
procedures and safeguards in relation to such matters. The Bill will amend Part 1D
of the Crimes Act 1914 to regulate the taking of forensic material, including DNA
material, from volunteers and convicted offenders for the purposes of law
enforcement and will provide for rules governing the use of information derived
from that material.
5.
The provisions contained in the Bill closely follow the 2000 Model Bill and
establish a detailed code governing the taking of forensic material.
6.
Under the Bill, different procedures govern the circumstances in which
forensic procedures on suspects, offenders and volunteers can be authorised and
the types of forensic procedures available. Proposed Division 6A deals with the
rules regulating the carrying out of forensic procedures on convicted offenders
who are under sentence. A person who is under sentence is someone still in prison
or the subject of some sentencing order regardless of when they were convicted.
Proposed Division 6B sets out the rules regulating the carrying out of forensic
procedures on volunteers.
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Complements existing Part 1D
7.
The Bill maintains the existing approach in Part 1D of the Crimes Act 1914
which carefully balances the rights of the suspect against the public interest in
gathering evidence of offences by ensuring similar procedures and safeguards
apply to convicted offenders and volunteers. For example, the safeguards which
protect the rights and interests of suspects, including safeguards to protect children
and incapable persons, have been retained and will apply to convicted offenders
and volunteers. These safeguards are supplemented by additional provisions which
prescribe criminal offences directed at non-compliance with the rules concerning
the use of information derived from the carrying out of forensic procedures.
Forensic material covered by the Bill
8.
The Bill covers the same range of forensic material as currently included in
Part 1D of the Crimes Act 1914 – the range of material covered by the Bill
includes fingerprints and other prints, dental casts, photographs and body samples
(eg, hair, saliva and blood). However, the procedures for taking forensic material
from convicted offenders are blood, mouth swabs, fingerprints and non-intimate
hair samples as they are all that is required for DNA analysis.
The authorisation of forensic procedures
9.
The Bill details the types of forensic procedures which can be carried out on
volunteers and offenders: the same categorisation of procedures as intimate
forensic procedures and non-intimate forensic procedures that is found in existing
Part 1D also applies with respect to volunteers and offenders.
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10.
The Bill outlines the circumstances in which forensic procedures may be
authorised: (a) with the informed consent of the volunteer or offender and (b) in
the case of offenders who do not consent, and depending on the type of forensic
procedure to be carried out, by order of a magistrate (intimate forensic procedure)
or a constable (non-intimate forensic procedure).
11.
The Bill contains a range of safeguards to ensure that powers to take
samples are used appropriately. The power to take a sample cannot be exercised
automatically. First, the person to be sampled must be asked whether he or she
consents. With respect to offenders, the circumstances in which consent may be
requested are limited, and include a requirement that the request be justified (for
example, see proposed sections 23XWH and 23XWI).
12.
In all cases, in order to be effective the consent must be properly informed
and recorded. Special provisions apply to consent arrangements for children and
incapable persons, who are not able to consent on their own behalf (see proposed
sections 23XWO(2) and 23XWU).
13.
Where consent is not forthcoming or is withdrawn, it may be possible to
obtain an order authorising the procedure. Magistrates (for intimate forensic
procedures) and police constables (for non-intimate forensic procedures) who
order a forensic procedure to be carried out must balance a range of matters set out
in the Bill before deciding whether to make the order. The factors to be considered
differ depending on whether the person is an offender or a volunteer and whether
the person is a child or incapable person. For example, with respect to a volunteer
who is a child or incapable person the factors to be considered by a magistrate are
(see proposed section 23XWV):
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(a)
whether the forensic procedure would authorise the procedure in the
absence of this section;
(b)
the seriousness of the circumstances surrounding the commission of
the offence being investigated;
(c)
the best interests of the child or incapable person;
(d)
as far as they can be ascertained, the wishes of the child or incapable
person;
(e)
any wishes of the parent or guardian of the child or incapable person
(unless the parent or guardian is suspected in the commission of the
relevant offence);
(f)
whether the carrying out of the forensic procedure is justified in all the
circumstances.
14.
Similar provisions govern the ordering of intimate and non-intimate
forensic procedures from offenders (see proposed sections 23XWO(7) and
23XWL).
15.
The Bill adopts the rules for carrying out forensic procedures on suspects,
which are already included in Division 6 of Part 1D, and applies these to the
volunteer and offender contexts. The Bill regulates the storage of forensic
information on the national DNA database system, destruction requirements and
describes how evidence obtained from forensic material may be used. For
example, if a forensic procedure authorised by the Bill is not carried out as
required by the rules in existing Division 6 of Part 1D evidence obtained through
the procedure may be inadmissible in any subsequent proceedings.
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DNA database provisions
16.
The Bill contains provisions to enable forensic material consisting of DNA
material to be included on a national DNA database system. These provisions are
also drawn from the 2000 Model Bill and will regulate Commonwealth input into
and use of the proposed national DNA database to be established as part of the
national CrimTrac initiative. The provisions explain what forensic material
collected under this Bill may be stored on the database: forensic material obtained
from suspects pursuant to the existing provisions in Part 1D and forensic material
obtained from offenders and volunteers in accordance with the procedures outlined
in this Bill. Further, the Bill outlines key procedures in relation to how forensic
material is to be stored on the database, how the databases can be interrogated,
who may have access to the databases and when the information from the
databases may be disclosed (see proposed Division 8A).
17.
There are safeguards to prevent the misuse of the database and of forensic
material, including penalties of imprisonment for breaches of the rules (see
proposed sections 23YDAD to 23YDAG).
18.
Data will be sorted and stored in particular indexes which reflect the source
of the data. The Bill contains rules setting out which indexes can be compared
with each other to find matches. It should be noted that not all indexes can be
compared with each other – for example, any data contained on the volunteers
(limited purpose) index can only be used for the purposes for which it was taken.
The rules regulating the comparing of indexes are contained in tabular form to
make it easier to see which matches will and will not be permitted (see proposed
section 23YDAF).
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19.
From time to time it will be necessary to remove data from an index – for
example, if a suspect is cleared, or the conviction of an offender is set aside, the
data relating to that suspect or offender must be destroyed. Data is destroyed by
removing the means of identifying the source of the data, which makes it
impossible to link the data to a particular person. It is an offence to record or
retain identifying material for data which is required to be destroyed under the Bill
(see Division 8 and proposed section 23YDAG).
Interstate arrangements
20.
The Bill enables the Commonwealth to enter into arrangements with other
participating jurisdictions to facilitate the establishment of the national DNA
database system as a national initiative so that law enforcement agencies are able,
subject always to the matching rules, to share and exchange intelligence. The Bill
also provides, in the spirit of cooperation, for the reciprocal enforcement of orders
for the carrying out of forensic procedures made in other jurisdictions. These
provisions recognise that criminals operate without regard to State and Territory
borders and law enforcement benefits from co-operation regardless of the
jurisdiction (see proposed Division 11).
Non-judicial powers and functions
21.
Item 2 of Schedule 1 of the Bill outlines the rules applicable to the situation
where a Commonwealth law relating to criminal matters confers on State and
Territory judges , magistrates or other court employed officers a function or power
that is neither judicial nor incidental to a judicial function or power. For
constitutional reasons, the proposed section 4AAA clarifies that the function or
power conferred on the State and Territory judge, magistrate or court employed
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officer is conferred in a personal and voluntary capacity. Proposed section 4AAB
is a mechanical provision which permits arrangements to be made between the
Commonwealth and the States and Territories with respect to the exercise of
conferred powers and functions by State and Territory judges, magistrates or court
employed officers in their personal capacities. The proposed provisions also
replace a similar but specific provision concerning orders for forensic procedures
at section 15FA of the Crimes Act 1914, which would be repealed by item 3 of
Schedule 1 of the Bill.
Amendments to the Mutual Assistance in Criminal Matters Act 1987
22.
The opportunity has been taken to clarify that a foreign restraining order,
whatever its terms, once registered in an Australian court, will take effect as if it
were an order in the form of a restraining order made under domestic law. This
will ensure that Australia can fulfil its international obligations and assist other
countries in securing suspected proceeds of crime located in Australia, (see
Schedule 2 of the Bill).
Financial Implications
23.
There will be costs for the Australian Federal Police associated with taking
and analysing samples. However, in the longer term, it is anticipated there will be
savings resulting from shorter investigation periods (by assisting with the
elimination of suspects and narrowing the focus of investigations), an increase in
guilty pleas and, hopefully, a reduction in crime.
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NOTES ON ITEMS
Section 1 - Short title
24.
It is proposed that the short title of the Act will be the Crimes Amendment
(Forensic Procedures) Act 2001.
Section 2 - Commencement
25.
Subsection 2(1) provides that the Act and items 2 and 3 of Schedule 1 and
all of Schedule 2 commence on the day on which this Act receives the Royal
Assent. Items 2 and 3 of Schedule 1 deal with judicial and magisterial
arrangements and Schedule 2 with international mutual assistance matters. These
are mechanical amendments which do not require any lead time before coming into
effect.
26.
Subsections 2(2) and 2(3) provide that the substantive provisions of the Act
dealing with forensic procedures and contained in Schedule 1 (other than items 2
and 3) will commence 6 months after Royal Assent, unless commenced by
Proclamation at an earlier date. This will provide the Government with some
flexibility about the date of commencement to ensure there is adequate awareness
of the provisions and to allow the Australian Federal Police to train officers. It
also avoids the undesirable outcome of having unproclaimed legislation on the
statute book for too long.
27.
Subsection 2(4) ensures that current provisions in Part 1D of the Crimes Act
1914 referred to in item 78 of this Bill, which are to be replaced by the provisions
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in this Bill at item 77, are repealed immediately before being replaced. The
remainder of this subsection deals with technical issues to ensure that the
renumbering of Divisions in Part 1D of the Crimes Act 1914 occurs after the
amendments in this Bill commence.
Section 3 - Schedules
28.
This section provides that the Acts specified in the Schedules to the Bill, the
Crimes Act 1914 in Schedule 1 and the Mutual Assistance in Criminal Matters Act
1987 in Schedule 2, are amended as set out in each case.
SCHEDULE 1 - AMENDMENT OF THE CRIMES ACT 1914
29.
This Schedule sets out the amendments to be made to provisions in Part 1D
and in Part 1A of the Crimes Act 1914 in relation to forensic procedures and other
matters.
Item 1 - section 3ZL
30.
This item ensures that the power to take fingerprints already contained in
section 3ZL of the Crimes Act 1914 (which is not limited to forensic procedures)
will not restrict the ability to take fingerprints from prescribed convicted offenders
pursuant to Part 1D (which is concerned with forensic procedures).
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Item 2 - Non-judicial powers and functions (proposed sections 4AAA and
4AAB)
31.
This item inserts new sections 4AAA and 4AAB into Part 1A of the Crimes
Act 1914. These sections outline the rules applicable to the situation where a
Commonwealth law relating to criminal matters confers on State and Territory
judges, magistrates or other court employed officers a function or power that is
neither judicial nor incidental to a judicial function or power. For example, the
power of a magistrate to order the carrying out of a forensic procedure on a suspect
under section 23WS of the Crimes Act 1914. The proposed section 4AAA clarifies
that the function or power is conferred in a personal and voluntary capacity. This is
necessary for constitutional reasons. In essence, non-judicial functions or powers
must be conferred in a personal capacity because judicial office holders, for
example, a magistrate, must only exercise Commonwealth judicial functions in
their official capacity. Failure to adhere to this may undermine the fundamental
separation of powers doctrine enshrined in Chapter III of the Commonwealth
Constitution (see, for example, Grollo v Commissioner v Australian Federal
Police (1995) 131 ALR 225; Hilton v Wells (1985) 157 CLR 57).
32.
Proposed subsection 4AAA(1) identifies the relevant powers and functions
that are considered to have been conferred and the persons upon whom those
functions and powers have been conferred. The application of this provision to
State and Territory officers recognises that, from a Commonwealth perspective,
State and Territory courts administer the criminal justice process under section 68
of the Judiciary Act 1903.
33.
The application of this subsection is restricted to Commonwealth laws in
relation to criminal matters, including matters contained in the Crimes Act 1914.
13
The general description of ‘criminal matters’ is important as it will allow State and
Territory officers, including judges or magistrates, to make orders in their personal
capacity regarding matters that are contained in other Commonwealth legislation
(for example, orders required for obtaining search warrants under the Customs Act
1901 regarding the seizure of forfeited goods, including prohibited imports and the
proceeds of drug trafficking) and for matters that originate in an overseas
jurisdiction but relate to Australia (for example, the issuing of warrants for arrest
of suspected war criminals under the International War Crimes Tribunal Act
1995).
34.
Proposed paragraph 4AAA(1)(c) extends the application of this provision to
certain Justices of the Peace and other persons. As some of the orders required by
investigating agencies are very administrative in nature they are able to be issued
by Justices of the Peace or certain other persons employed in courts, for example,
Registrars. However, it is considered important to limit the application of proposed
subsection 4AAA to Justices of the Peace and other persons who are employed by
a State and Territory court and who ordinarily are authorised to issue search
warrants or warrants of arrest. These limitations will ensure that only appropriately
trained people will be authorised to make orders relevant for the administration of
the criminal justice process.
35.
Proposed subsection 4AAA(2) clarifies that the function or power is
conferred in a personal capacity.
36.
Proposed subsection 4AAA(3) makes it clear that the performance of the
function or exercise of the power must be voluntary.
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37.
Proposed subsection 4AAA(4) ensures that the same protection enjoyed by
a State or Territory judge or a magistrate as a judicial office holder extends to the
performance of functions or exercise of powers conferred by a Commonwealth law
relating to criminal matters.
38.
Proposed subsection 4AAA(5) applies to certain State and Territory court
employed officers and achieves the same purpose as subsection 4AAA(4) does for
State and Territory judges and magistrates.
39.
Proposed subsection 4AAA(6) ensures that the proposed rules regarding the
conferral of non-judicial functions apply in relation to functions or powers
conferred pursuant to a Commonwealth law whether or not that law was made
before, on or after the commencement of the proposed rules. The amendment is
merely for the purpose of ensuring existing procedures operate as they were
intended. It is also necessary to make the procedures apply to all such laws to
ensure the law in this area is less complex.
40.
Proposed subsection 4AAA(7) clarifies that the rules in section 4AAA
apply to functions or powers conferred under Commonwealth laws relating to
criminal matters, including functions or powers conferred under the Crimes Act
1914. This provision ensures that the general reference to ‘criminal matters’ is not
somehow interpreted by the courts to evince an intention to exclude matters
covered in the Crimes Act 1914 itself.
41.
Section 4AAB enables the Governor-General to make arrangements with
the States and Territories for the performance of functions and the exercise of
powers conferred under section 4AAA. The arrangements recognise the fact that
the performance of functions and exercise of powers is voluntary.
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42.
Proposed subsection 4AAB(1) empowers the Governor-General to make
arrangements.
43.
Proposed subsection 4AAB(2) validates the performance of functions or
exercise of powers in the absence of arrangements made under subsection (1). This
provision reflects the reality that arrangements are contemplated as a constitutional
precaution. However, it is not conceded that orders made where there is no
arrangement are not valid.
44.
Proposed subsections 4AAB(3) and (4) replicate subsections 4AAA(6) and
(7).
Item 3 - Repeal of section 15FA
45.
In light of the insertion of proposed sections 4AAA and 4AAB, section
15FA (which is a similar but specific provision concerning orders for forensic
procedures) will no longer be required as there are no arrangements under that
provision. This item repeals section 15FA. Section 3CA which also performs a
similar function with respect to search warrants, has not been repealed because
there are current arrangements under that provision.
Item 4 - Simplified Outline
46.
This item summarises the main provisions contained in Part 1D of the
Crimes Act 1914 and updates the existing Simplified Outline to take into account
the proposed amendments to Part 1D in this Bill. The Simplified Outline is not an
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operative legislative provision, rather it acts as a ‘signpost’ which enables a reader
to get an overview of Part 1D.
Items 5 - 36 - Definitions (subsection 23WA(1)
47.
These proposed items include amendments to the following defined terms
currently in section 23WA of Part 1D: ‘forensic material’; ‘forensic procedure’;
‘incapable person’; ‘intimate forensic procedure’; ‘investigating constable’; ‘nonintimate forensic procedure’; ‘order’; ‘relevant offence’; ‘tape recording’ and are
technical rather than substantive changes.
48.
The remainder of these proposed items insert definitions for new terms
required for the purposes of this Bill. Most of the definitions are based on the 2000
Model Bill. The new terms are: ‘AFP function’; ‘authorised applicant’;
‘Commissioner’; ‘corresponding law’; ‘destroy’; ‘DNA database system’;
‘exercise a function’; ‘function’; ‘member of the opposite sex of a person’;
‘member of the same sex as a person’; ‘offender’; ‘participating jurisdiction’;
‘prescribed offence’; ‘prescribed offender’; ‘prison medical officer’; ‘recognised
transgender person’; ‘responsible person’; ‘serious offence’; ‘serious offender’;
‘transgender person’; ‘’under sentence’; ‘volunteer’. Those of particular note are:
(a)
‘prescribed offender’ is a person convicted of an offence under a law of the
Commonwealth punishable by a penalty of imprisonment for life or 2 or more
years who is still under sentence. Existing Part 1D of the Crimes Act 1914
allows the taking of forensic material from a suspect in relation to an
indictable offence. ‘Indictable offence’ is currently defined in section 4G of
the Crimes Act 1914 as an offence against a law of the Commonwealth
punishable by imprisonment for a period exceeding 12 months. The term
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‘prescribed offence’ is the terminology used in the 2000 Model Bill and is
used to set a standard maximum penalty for relevant provisions. There is no
substantive difference between ‘indictable offence’ and ‘prescribed offence’
as the lowest maximum penalty prescribed by Commonwealth laws which
exceeds imprisonment for 12 months is imprisonment for 2 years.
(b)
‘serious offender’ is a person convicted of an offence under a law of the
Commonwealth punishable by a penalty of imprisonment for life or 5 or more
years who is still under sentence. This is consistent with the current approach
of Division 11 of Part 1D of the Crimes Act 1914. However, Division 11 of
Part 1D will be repealed by this Bill and replaced with exhaustive provisions
regulating the carrying out of forensic procedures from convicted serious
offenders.
The distinction between these two groups of offenders is important as it is
only convicted serious offenders that can be requested or ordered to provide a
forensic sample for storage on the national DNA database. A prescribed
offender can only be ordered to provide fingerprints upon or after conviction.
(c)
The meaning attributed to ‘destroy’, in the context of destroying forensic
material, is explained in proposed subsection 23WA(5). The definition
recognises that it is not feasible to require the destruction of all the
microscopic forensic material taken from a person that inevitably remains on
a laboratory bench. Instead, destruction requires the removal of the
identifying links that connect a particular person to any forensic material or
information. This definition assumes great importance in Division 8 of Part
1D which outlines the rules requiring the destruction of forensic material and
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information. New destruction rules are inserted into Division 8 by items 59 64 of this Bill.
(d)
The concept of a ‘transgender person’ is defined in proposed subsection
23WA(6). Certain forensic procedures involving the breasts are classified
according to whether the person on whom the procedure is carried out is a
woman or a transgender person who identifies as a woman. In brief, a
transgender person is someone who identifies as a member of the opposite
sex to the sex that person was born. A recognised transgender person is
someone whose birth record is altered under law to change the sex specified
in the record.
(e)
The terms ‘member of the opposite sex of a person’ and member of the same
sex as a person’ are defined in proposed subsection 23WA(7). These
definitions are important so that when carrying out a forensic procedure on a
transgender person, particularly an intimate forensic procedure, that person’s
privacy can be respected by having the procedure performed by an
appropriate person.
(f)
The term ‘under sentence’ is defined in proposed subsection 23WA(8) by
reference to Division 1B of the Crimes Act 1914. An offender is considered
to be ‘under sentence’ if they are currently serving a sentence in prison, if
they are serving a sentence imposed by a State or Territory court (for
example, a community service order), if they are released under a bond,
parole order or on licence, if they are a child or young person serving a
sentence imposed by a State or Territory court mentioned in subsection
20C(1) (for example, a juvenile detention order) or if they are subject to an
order made pursuant to Division 9 of Part 1B (for example, a hospital order).
19
This provision ensures that forensic procedures can only be performed on
those convicted serious and prescribed offenders who are ‘under sentence’.
The 2000 Model Bill does not contain a restriction of this nature. The
Government considers that there should be some limit on when such
procedures should be carried out which is linked to the sentencing process.
Item 36 - Meaning of destroy, transgender person, member of the opposite sex
of a person, member of the same sex as a person and under sentence
(proposed subsections 23WA(5), (6), (7) and (8))
49.
This item inserts proposed subsections 23WA(5), (6), (7) and (8) which
provide comprehensive definitions of the terms destroy, transgender persons,
member of the opposite sex of a person and member of the same sex as a person
and under sentence, respectively. These terms are described in detail in the
discussion on items 5 - 34 above. Proposed subsections 23WA(5), (6) and (7)
relate directly to subclauses 1(5), (6) and (7) of the 2000 Model Bill.
Items 36A and 36B – Section 23WB
50.
These items make consequential amendments to existing section 23WB in
the Crimes Act 1914 so that the description of who may act as a person’s interview
friend extends beyond suspects to the offender and volunteer contexts.
Item 37 - Sub-heading
51.
This proposed item alters the heading for Division 2 of Part 1D so that it
better reflects the content of Division 2.
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Item 38 - Sub-heading
52.
This proposed item alters the heading for Division 3 of Part 1D so that it
better reflects the content of Division 3.
Item 39 - Matters to be considered by police officer before requesting consent
to forensic procedure (proposed paragraph 23WI(1)(d))
53.
This proposed amendment adds a new consent requirement that a constable
must be satisfied of before requesting a suspect to undergo a forensic procedure.
At present, section 23WI(1) stipulates that before requesting a suspect consent to a
forensic procedure a constable must be satisfied on the balance of probabilities that
the person is a suspect, that there are reasonable grounds to believe the forensic
procedure is likely to produce evidence tending to confirm or disprove that the
suspect committed the offence being investigated and that the request is justified in
all the circumstances. In finalising the 2000 Model Bill, and through a consultative
process, it was decided to reinforce these grounds by adding the proposed
paragraph to ensure the constable considers whether the person is a child or
incapable person (so that the appropriate procedures in Division 5, which require
the involvement of a magistrate, are followed if the person is a child or incapable
person).
54.
The proposed amendment adopts the approach taken in subclause 8(1) of
the 2000 Model Bill.
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Items 40 & 41 - Matters that suspect must be informed of before giving
consent (proposed paragraphs 23WJ(1)(ia) and (k))
55.
The purpose of these proposed amendments is to ensure that a suspect’s
consent is properly informed, by requiring the police officer requesting the consent
to provide the suspect with detailed information about the procedure and its
potential consequences for the criminal investigation and any ensuing proceedings.
Most of this information is already included in subsection 23WJ(1) but these
amendments, consistent with the 2000 Model Bill, ensure that a suspect is also
informed about the limited circumstances in which a suspect’s refusal to consent to
a forensic procedure is admissible in subsequent proceedings and the fact that the
forensic information may be placed on the national DNA database system.
56.
These proposed amendments adopt the approach taken in subclause 9(1) of
the 2000 Model Bill.
Item 41A – Subsection 23WJ(2)
57.
This item is a consequential amendment relating to item 50 of the Bill,
which will ensure that a suspect has a right to have a medical practitioner or dentist
present during intimate forensic procedures. This item ensures that section
23WJ(2) is consistent with section 23XM(3), as proposed to be amended in item
50.
Item 42 - Sub-heading
58.
This item alters the heading for Division 4 of Part 1D so that it better
reflects the content of Division 4.
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Item 43 - Sub-heading
59.
This item alters the heading for Division 5 of Part 1D so that it better
reflects the content of Division 5.
Item 44 - Proposed paragraph 23WT(3)(g)
60.
This item is a technical amendment that changes ‘reason’ into the plural
‘reasons’, reflecting the fact that a suspect may have more than one reason for
refusing to consent to a forensic procedure.
Item 45 - Procedure at hearing of application for order (proposed subsections
23WX(6) and (6A))
61.
This proposed amendment replaces subsection 23WX(6) to clarify that the
suspect or his or her representative has the right to cross-examine the applicant
and, with leave, the right to cross-examine or call other witnesses. The magistrate
cannot grant leave to a suspect or his or her representative to call other witnesses
unless the magistrate is of the opinion that there are substantial reasons why, in the
interests of justice, the witness should be called or cross-examined.
This
amendment is designed to ensure the hearing of such matters is not unduly
complex. The procedure is based on subsection 48E(2)(b) of the Justices Act 1902
(NSW) and is found at subclause 23(4) of the 2000 Model Bill.
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Item 46 - Sub-heading
62.
This item alters the heading for Division 6 of Part 1D so that it better
reflects the content of Division 6.
Item 47 - Taking samples of hair (proposed section 23XL)
63.
Proposed subsection 23XL allows the plucking of hair roots when a hair
sample is being taken. This change to the current position in Part 1D (which only
allows the cutting of hair) is based on advice from forensic science experts that
DNA extracted from a hair root is necessary to obtain suitable DNA. Submissions
were received in consultation from the John Tonge Centre for Forensic Science
(Queensland), the National Institute of Forensic Science Australia, the Australian
Federal Police and the New South Wales Police strongly recommending the
proposed change. In recognition that this procedure is more involved than cutting
the hair, safeguards have been built into the new provision so that only the exact
amount of hair that is necessary should be plucked from a person and that the least
painful technique known and available is used to pluck each hair strand
individually.
64.
The proposed provision follows clause 37 of the 2000 Model Bill.
Item 48 - People who may carry out forensic procedures (proposed
subsections 23XM(1) and (2))
65.
This item alters a cross-reference in light of the insertion of proposed
subsection 23XM(4) by this Bill.
24
Item 49 - video recordings (proposed subsection 23XM(3))
66.
This proposed amendment ensures that video recordings as well as
photographs may be taken to record and provide evidence of an external
examination.
Item 50 - People who may carry out forensic procedures (proposed subsection
23XM(3))
67.
At present, section 23XM contains a table which outlines the persons
capable of carrying out forensic procedures. The emphasis is on ensuring that only
those with appropriate qualifications are able to carry out forensic procedures. At
present, a suspect is entitled, for each type of forensic procedure, to request the
presence a medical practitioner or dentist of their choice. This situation is based on
the approach adopted in the 1995 Model Bill. However, in developing the 2000
Model Bill and through the consultative process the policy was reassessed. For
simple forensic procedures it was considered overly protective and inefficient to
allow a suspect to request the presence of his or her medical practitioner at the
carrying out of the relevant procedure. A medical practitioner should only be
required for those forensic procedures where health or safety considerations might
be relevant. Otherwise, an appropriately qualified person is suitable to perform
simple forensic procedures.
68.
Accordingly, the purpose of this proposed amendment is to allow certain
forensic procedures to be carried out by appropriately trained police or civilian
staff members of law enforcement agencies or forensic facilities without a person
being able to insist on the presence of a medical practitioner. The nominated
procedures are all those where an appropriately authorised person is capable of
25
performing the procedure without endangering the health of the person undergoing
the forensic procedure. In some instances a medical practitioner may not be
available for some time, for example in a remote community, so that it is
unreasonable to prolong the carrying out of those forensic procedures which will
not endanger the health of the person where an appropriately qualified person is
able to perform the procedure. These changes will also avoid the undesirable
situation of having to detain a suspect for a long period while waiting for a medical
practitioner to become available.
69.
The proposed amendment reflects the approach taken in clause 38 of the
2000 Model Bill.
Item 51 - People who may carry out forensic procedures (proposed subsection
23XM(3))
70.
This amendment is necessary to maintain a consistent approach to
authorising persons to carry out forensic procedures. Allowing a ‘constable’ to
perform a forensic procedure is anomalous when the preferred approach is to
authorise an ‘appropriately qualified person’ to carry out forensic procedures. This
amendment ensures that only persons with suitable training and qualifications can
perform forensic procedures rather than ‘constables’ at large.
71.
The proposed amendment reflects the approach taken in clause 38 of the
2000 Model Bill.
26
Item 52 - video recordings (proposed subsection 23XM(3))
72.
As with item 49, this proposed amendment ensures that video recordings as
well as photographs may be taken to record and provide evidence of an external
examination.
Item 53 - Suspect able to take own samples in certain circumstances
(proposed subsection 23XM(4))
73.
This proposed amendment allows a person to perform relatively simple
forensic procedures on themselves, that is, saliva and buccal swab samples, with a
negligible risk of injury, provided the procedure is supervised by an appropriately
qualified person. This approach avoids any unnecessary invasion of a person’s
privacy and is consistent with subclause 38(3) of the 2000 Model Bill.
Item 54 - Person may get help to carry out forensic procedure (proposed
subsection 23XO(3))
74.
The purpose of this proposed amendment is to enable a person assisting in
the carrying out a forensic procedure to use reasonable force where necessary.
Section 23XJ of Part 1D already enables people, in addition to police, to carry out
a forensic procedure. However, it is not clear in that section whether this is
restricted to medical practitioners or other appropriately trained persons authorised
to assist them. If the person carrying out the procedure requires authorisation to use
reasonable force, it is necessary that those assisting them have the same
capabilities. It is not possible to perform such procedures in the gentlest way
without authorisation of this nature. This amendment merely implements what was
27
the original intention of the existing legislation and is consistent with subclause
40(3) of the 2000 Model Bill.
Item 54A – Subsection 23XP(1)
75.
This item is a consequential amendment relating to item 50 of the Bill,
which will ensure that a suspect has a right to have a medical practitioner or dentist
present during intimate forensic procedures. This item ensures that section
23XP(1) is consistent with section 23XM(3), as proposed to be amended in item
50.
Item 55 - Preventing the carrying out of forensic procedure (proposed section
23XWA)
76.
This proposed amendment makes it an offence to interfere with or prevent
the carrying out of a forensic procedure. Although there is a general offence of
obstructing, hindering and resisting police (see section 76 of the Crimes Act 1914)
and for that reason in 1998 Parliament decided not to include such an offence, the
general offence would not apply to a situation in which the obstruction was
directed at a person assisting in carrying out a forensic procedure. It makes sense
to include a specific offence in Part 1D.
77.
The proposed offence is consistent with that included in clause 48 of the
1995 and 2000 Model Bills.
28
Item 56 - Convicted offenders and volunteers (proposed Divisions 6A and 6B)
78.
Proposed Division 6A contains procedures in relation to obtaining forensic
material from convicted offenders and follows the Division 7 of the 2000 Model
Bill. It replaces current Division 11 of Part 1D of the Crimes Act 1914. Proposed
Division 6B contains completely new provisions in relation to obtaining forensic
material from volunteers and follows Division 8 of the 2000 Model Bill.
Proposed Division 6A
Carrying out of certain forensic procedures after
conviction of serious and prescribed offenders
79.
The purpose of this Part is to set out rules regulating the carrying out of
forensic procedures on certain convicted offenders for law enforcement purposes.
Experience in Australia and in other jurisdictions indicates that a small percentage
of the community is responsible for committing most of the offences within that
community, and that recidivism rates for certain offences, particularly property
offences and sex offences, are significant. This Division will enable forensic
material to be taken from convicted offenders for inclusion on the national DNA
database which can be subsequently used in criminal investigations. The type of
forensic procedure that can be performed depends upon whether a person is a
serious or prescribed offender: fingerprints are all that can be obtained from a
prescribed offender. This reflects the fact that, historically, police have been able
to obtain fingerprints from offenders and that it is a different procedure.
Proposed section 23XWB - Forensic procedures to which this Division applies
80.
Proposed subsections 23XWB(1) and (2) stipulate that only a limited range
of forensic procedures may be carried out on convicted offenders. The permitted
29
procedures are taking blood samples and buccal swabs, which are intimate forensic
procedures, and hair samples (non-pubic only) and fingerprints which are nonintimate forensic procedures. No other forensic procedure is authorised by this
Division.
81.
Proposed subsection 23XWB(3) states that a forensic procedure can be
carried out on a convicted offender regardless of whether the conviction was
recorded before or after the commencement of this Bill. This is subject to the fact
that the offender must be under sentence. ‘Under sentence’ is defined in proposed
subsection 23WA(8) which is discussed at item 36 of this Bill. It includes those
who are still in prison, on parole, community service or other form of supervised
release. It is critical to the creation of a useful DNA database system that forensic
material can be obtained from all such offenders. The fact that they have been
convicted of a serious offence is enough to justify, for reasons of community
protection, the availability of the procedure where the person was convicted prior
to the commencement of the legislation. However, there are safeguards to ensure
it does not occur in inappropriate circumstances. These are discussed below. In
the scheme of things, the procedure is not an enormous imposition compared to
other consequences of conviction.
82.
The proposed subsection is consistent with clauses 49 and 50 of the 2000
Model Bill.
Proposed section 23XWC - Non-intimate forensic procedures authorised to be
carried out
83.
This proposed provision summarises when a non-intimate forensic
procedure can be carried out. In the case of a serious offender, with the consent of
30
the offender or by order of a constable, provided the offender is not a child or an
incapable person. Only fingerprints can be obtained from a prescribed offender
either with the consent of that prescribed offender or pursuant to an order of a
constable (provided the prescribed offender is not a child or incapable person). A
magistrate’s order is required to authorise any non-intimate forensic procedure,
including the taking of fingerprints, on an offender who is a child or incapable
person. An intimate forensic procedure cannot be carried out on a child or
incapable person. Consistent with other criminal procedures, this recognises the
inexperience and vulnerability of young people.
84.
The proposed subsection is consistent with clause 50 of the 2000 Model
Bill.
Proposed section 23XWD - Intimate forensic procedures authorised to be
carried out
85.
Proposed section 23XWD provides that the consent of a serious offender,
who is not a child or incapable person, is necessary to authorise an intimate
forensic procedure (a mouth swab or blood sample). Otherwise, the procedure
must be authorised by a magistrate.
86.
The proposed section is consistent with clause 51 of the 2000 Model Bill.
Proposed section 23XWE - Application of Division 6
87.
The effect of proposed section 23XWE is to ensure that forensic procedures
carried out on offenders are performed in the same way, and subject to the same
limitations, as forensic procedures carried out on suspects. The rules in Division 6
31
of Part 1D, regarding the carrying out of forensic procedures on suspects, include
requirements:
(a)
that the procedure will be performed in a dignified manner;
(b)
that force may be used where necessary;
(c)
regarding the qualifications and gender of the person performing
the procedure;
88.
(d)
regarding who may be present; and
(e)
that the giving of informed consent must be recorded.
All these procedures are just as relevant to the carrying out of forensic
procedures on offenders.
89.
The proposed section is consistent with clause 52 of the 2000 Model Bill.
Proposed section 23XWF - Scope of authorisation
90.
The purpose of proposed section 23XWF is to make it clear that Division
6A is not to be used to obtain forensic material from an offender who is also a
suspect or a volunteer. In other words, this Division cannot be used to by-pass the
provisions which deal with carrying out forensic procedures on suspects or
volunteers. This is an important provision as the circumstances in which forensic
procedures can be carried out differ depending on whether the person is a suspect,
offender or volunteer.
91.
The proposed section is consistent with clause 53 of the 2000 Model Bill.
32
Proposed section 23XWG - Informed consent to forensic procedure
92.
The proposed section explains what a constable must do before an
offender’s consent to a forensic procedure will be considered to be informed
consent. The offender must be advised of certain matters and given an opportunity
to consult a legal practitioner before deciding whether or not to consent. The
precise nature of the matters an offender must be informed of are contained in
proposed section 23XWJ which is discussed below. The exception to this is where
there is a danger that attempting to comply with the procedure might give the
defendant the opportunity to destroy or contaminate the evidence.
93.
The proposed section is consistent with clause 54 of the 2000 Model Bill.
Proposed section 23XWH - Constable may request offender to consent to
forensic procedure
94.
The proposed section allows a constable to seek a serious offender’s
consent to an intimate or non-intimate forensic procedure, providing the serious
offender is not a child or incapable person. The section allows the same with
respect to a prescribed offender’s consent to the taking of fingerprints. The
purpose of the provision is to give offenders an opportunity to agree to the
procedure without the need to obtain a constable’s order or magistrate’s order for
the carrying out of a forensic procedure. This will encourage a conciliatory
approach between offender and law enforcement agency and is efficient.
95.
The proposed section is consistent with clause 55 of the 2000 Model Bill.
33
Proposed section 23XWI - Matters to be considered by constable before
requesting consent to forensic procedure
96.
The purpose proposed section 23XWI is to require a constable, prior to
requesting an offender to consent to undergoing a forensic procedure, to consider
the justification for the request. Further, where the offender is not in prison or
otherwise in detention when the request is made, the constable must be satisfied
that the person whose consent is requested is in fact an offender (this requirement
is not considered necessary for persons who are in detention because there are
already procedures in prisons and remand centres to establish a person’s identity
and convictions for offences). An example of where the request might not be
justified is if the constable is aware the person has provided samples on a number
of occasions over a short period of time.
97.
The proposed section is consistent with clause 56 of the 2000 Model Bill.
34
Proposed section 23XWJ - Matters that offender must be informed of before
giving consent
98.
The purpose of proposed section 23XWJ is to ensure that an offender’s
consent is properly informed, by requiring the constable seeking consent to provide
the offender with detailed information about the procedure and its potential
consequences, including possible use in proceedings against the offender, and for
serious offenders, the inclusion of forensic material on the DNA database system.
In proposed subsections 23XWJ(2) and (3) the constable must also explain the
consequences of non-consent with respect to non-intimate and intimate forensic
procedures respectively. The requirements for informed consent are substantially
the same for offenders as for suspects (see section 23WJ of the Crimes Act 1914).
99.
The proposed section is consistent with clause 57 of the 2000 Model Bill.
The Model Criminal Code Officers’ Committee consulted the Federal Privacy
Commissioner to ensure provisions like this complied with privacy policy.
Proposed section 23XWK - Circumstances in which constable may order nonintimate forensic procedure
100.
This section permits a constable to order the carrying out of a non-intimate
forensic procedure on a serious offender or the taking of fingerprints for a
prescribed offender, providing the offender is not a child or incapable person, only
if consent has been refused and the constable has considered the matters listed in
proposed section 23XWL. These safeguards ensure that the carrying out of
forensic procedures must be relevant to law enforcement purposes.
101.
The proposed section is consistent with clause 58 of the 2000 Model Bill.
35
Proposed section 23XWL - Matters to be considered by constable
102.
This proposed section lists the matters to be considered before an order can
be made by a constable under the previous section. The relevant matters for
consideration are:
(a)
whether Part 1D would authorise the forensic procedure in the absence
of the constable’s order;
(b)
the seriousness of the circumstances surrounding the offence
committed by the offender;
(c)
whether the carrying out of the forensic procedure could assist law
enforcement; and
(d)
103.
whether the order would be justified in all the circumstances.
The proposed section is consistent with clause 59 of the 2000 Model Bill.
Clause 59 is based on procedures that have been used in Victoria where they have
worked well. Paragraph (c) has been added to link the provision back closely to the
purpose of the legislation.
104.
The grounds under the existing provision (subsection 23YQ(5)) which
require the court to be satisfied the offender has a propensity to reoffend were
based on the 1995 Model Bill. The authors of that Bill and submissions received
during the consultative process during the development of the 2000 Model Bill,
suggest that these grounds were far too onerous. They were formulated as an
interim solution and provide an inadequate basis for establishing an effective
national DNA database system.
36
Proposed section 23XWM - Recording of giving of information and consent
105.
Proposed section 23XWM is intended to prevent disputes about whether the
information or consent was given, by requiring the process to be recorded
electronically. If electronic recording is not possible, a written record must be
made and a copy of that record given to the offender.
106.
The proposed section is consistent with clause 60 of the 2000 Model Bill.
Proposed section 23XWN - Record of constable’s order
107.
This section incorporates natural justice considerations. It requires the order
made by a constable to be recorded and a copy provided to the offender as soon as
practicable after the order is made.
108.
The proposed section is consistent with clause 61 of the 2000 Model Bill.
Proposed section 23XWO - Court order for carrying out forensic procedure
on serious offender
109.
As noted above, an order from a judge or magistrate is required before a
non-intimate forensic procedure can be carried out on an offender who is a child or
incapable person. This applies to both serious and prescribed offenders who are
children or incapable persons. An order from a judge or magistrate is also required
if a serious offender has refused consent and the procedure is an intimate forensic
procedure. The application for the order can be made by an authorised applicant
either at the time of sentencing or later. In practice, the application will usually be
made at the time of sentencing and this is why subsection 23XWO(2) refers to an
37
application being made to a judge as well as a magistrate. This has been the
experience in Victoria which already has operative legislation enabling forensic
procedures to be carried out on convicted offenders.
110.
The critical provision in the section is subsection 23XWO(7). This
subsection details the matters that a judge or magistrate must be satisfied of before
making an order directing an offender is justified in all the circumstances. The
relevant matters for consideration are the same as those to be taken into account by
a constable who is ordering a non-intimate forensic procedure under proposed
section 23XWK. As in proposed section 23XWK, the additional matter for
consideration - that the carrying out of the forensic procedure could assist law
enforcement purposes - has been inserted into proposed subsection 23XWO(7).
111.
Subsection 23XWO(8) explains what is to happen to the results of the
procedure, requiring a person who conducts the analysis of forensic material
obtained to take into account the potential for the conviction to be overturned on
appeal. In short, analysis results cannot be disclosed pending the expiration of an
appeal period or if a conviction is quashed.
112.
Other than the addition of proposed paragraph 23XWO(7)(c) the proposed
section is consistent with clause 62 of the 2000 Model Bill.
Proposed section 23XWP - Carrying out forensic procedure following
conviction
113.
Proposed section 23XWP serves a practical purpose. It is intended to ensure
that orders for carrying out forensic procedures on convicted offenders can be
implemented, by enabling the court to make ancillary orders so constables have
38
access to offenders to carry out the procedure. For example, these orders would
allow a constable and an appropriately qualified person to attend on an offender in
the prison or place of detention in which the offender was serving his or her
sentence. An offender must comply with an order from a judge or magistrate
authorising a forensic procedure to be carried out on him or her. This is consistent
with existing section 23YQ(6) of the Crimes Act 1914, which is repealed and
replaced by proposed section 23XWP.
114.
As Commonwealth offenders are serving their sentences in the State and
Territory administered institutions, arrangements will be made in consultation with
the States and Territories for enforcing orders to carry out forensic procedures on
those offenders.
115.
The proposed section is consistent with clause 63 of the 2000 Model Bill.
Proposed Division 6B - Carrying out of forensic procedures on volunteers and
certain other persons
116.
The purpose of this Part is to provide a secure legislative basis for carrying
out forensic procedures on volunteers, and on children or incapable persons whose
parents or guardians have given informed consent to the procedure. Indeed, there
are examples of large numbers of residents in a particular town being prepared to
volunteer for the purposes of solving a local crime. In these circumstances, it is
important that persons who volunteer to undergo a procedure (or who volunteers
that a child or incapable person undergo the procedure), as well as the law
enforcement authorities, are certain of how forensic material can be taken, how it
can be used and what safeguards are in place to ensure that it is used only as
intended.
39
Proposed section 23XWQ - Carrying out of forensic procedures on volunteers
117.
Proposed section 23XWQ identifies those persons who will be considered
volunteers. A child or incapable person can be volunteered by a parent or guardian.
This is particularly important in the investigation of child sex offences where
forensic material can be crucial in securing sufficient evidence to commence a
prosecution.
118.
Proposed subsection 23XWQ(2) makes it clear that forensic procedures can
only be carried out:
(a)
on volunteers who have given informed consent;
(b)
with the informed consent of a parent or guardian of a child or
incapable person; and
(c)
in the absence of the informed consent of a parent or guardian of a
child or incapable person, pursuant to a magistrate’s order.
119.
The third limb addresses the situation where a parent or guardian withholds
consent because they themselves may be a suspect in an offence in which the child
or incapable person is the victim. In these situations it is necessary for a magistrate
to grant an order authorising the carrying out of a forensic procedure.
120.
Proposed subsection 23XWQ(3) makes it clear that these provisions only
authorise the carrying out of a forensic procedure if it is related to functions of the
Australian Federal Police. ‘AFP function’ is defined at item 5 to mean a function
under section 8 of the Australian Federal Police Act 1979, which lists a range of
law enforcement activities,
40
121.
Proposed subsections 23XWQ(2)(ii) and (4) make it clear that the rights of
the child or incapable person are paramount. If the child or incapable person resists
the carrying out of the forensic procedure the procedure must be stopped. While
such people cannot ‘consent’, the procedure is supposed to be of a voluntary
nature.
122.
Proposed subsection 23XWQ(5) also ensures that forensic procedures
carried out under this Part are performed in the same way, and subject to the same
limitations, as forensic procedures carried out on suspects under Division 6 of Part
1D.
123.
Apart from proposed subsection 23XWQ(3), the proposed section is
consistent with clause 64 of the 2000 Model Bill.
Proposed section 23XWR - Informed consent of volunteer or parent or
guardian of a volunteer
124.
The purpose of proposed section 23XWR is to ensure that a volunteer’s
consent, or the consent of a parent or guardian of a child or incapable person, is
properly informed. It is proposed that this is achieved by requiring the constable
requesting the consent to provide the volunteer, parent or guardian with detailed
information about the procedure and its potential consequences. Some of the
requirements for informed consent are common to those requirements with respect
to informed consent from suspects (see section 23WJ of the Crimes Act 1914).
However, the requirements are more onerous here in the case of volunteers. For
example, the detailed information given by a constable must be provided in the
presence of an independent person. Further, the volunteer, parent or guardian must
41
be informed that they may withdraw consent at any time with respect to
undergoing the forensic procedure, the retention of the forensic material taken or
the retention of information obtained from analysis of that material. The Senate
Standing Legal and Constitutional Legislation Committee recommended that
volunteers be given an express choice as to which index of the national DNA
database their DNA profiles may be stored on. This recommendation has been
adopted and is represented in proposed subparagraph 23XWR(2)(b). The
volunteer, parent or guardian must also be informed of the purposes for which the
forensic information obtained from carrying out the forensic procedure will be
stored on the national DNA database system and the length of time agreed to by
the volunteer, parent or guardian for which the information may be retained on the
DNA database. It is open for a volunteer, parent or guardian to insist that
information be stored for a limited purpose, for example, for the limited purpose of
investigating a particular offence.
125.
The proposed section is consistent with clause 65 of the 2000 Model Bill
and was developed following consultation with the Federal Privacy Commissioner.
Proposed section 23XWS - Recording of giving of information and consent
126.
As with proposed section 23XWN discussed above, proposed section
23XWS is intended to prevent disputes about whether the information or consent
was given, by requiring the process to be recorded electronically. If electronic
recording is not possible, a written record must be made and a copy of that record
given to the volunteer, or volunteer’s parent or guardian.
The standard for
volunteers should not be less than those for suspects and convicted offenders.
127.
The proposed section is consistent with clause 66 of the 2000 Model Bill.
42
Proposed section 23XWT - Withdrawal of consent
128.
Proposed section 23XWT explains what happens if consent is withdrawn to
either the carrying out of the procedure or retention of forensic material from the
procedure. Withdrawal of consent need not be in writing to be effective. For
example, the withdrawal of consent can be inferred from the conduct of a
volunteer, parent or guardian.
This reflects the voluntary nature of these
procedures.
129.
Where consent is withdrawn before the procedure is carried out and the
volunteer is a child or incapable person, the procedure cannot proceed except by
order of a magistrate. The purpose of permitting a procedure in relation to a child
or incapable person to proceed by order of a magistrate is to protect that child or
person where there are reasons to believe that the withdrawal may not be in the
child or incapable person’s best interests - for example, if the child or incapable
person is believed to be a victim of an offence committed by the relevant parent or
guardian.
130.
If the withdrawn consent concerns the retention of material generated by
forensic procedure, the material must be destroyed unless an order is made by a
magistrate under proposed section 23XWV to retain the material.
131.
The proposed section is consistent with clause 67 of the 2000 Model Bill.
43
Proposed section 23XWU - Circumstances in which magistrate may order
carrying out of forensic procedure on child or incapable person
132.
Proposed section 23XWU explains when a magistrate may order that a child
or incapable person undergo a forensic procedure for which there is no consent by
the relevant parent of guardian. An order can be made where the consent cannot
be obtained or is withdrawn. The consent may be unobtainable because the parent
or guardian cannot be found or if the child or incapable person is unwilling or
unable to reveal the identity or whereabouts of their parents or guardians. An order
can also be made under this section if the consent is refused and the parent or
guardian who refused consent is a suspect for the offence and is likely to be
implicated by the results of the forensic procedure.
133.
The factors to be considered by the magistrate before making an order are:
(a)
whether Part 1D would authorise the forensic procedure in the absence
of the order;
(b)
the seriousness of the circumstances surrounding the commission of
the relevant offence;
(c)
the best interests of the child or incapable person;
(d)
as far as they can be ascertained, the wishes of the child or incapable
person; and
(e)
134.
the circumstances.
It can be seen that the interests and wishes of the child or incapable person
are important considerations. As noted above, the procedure cannot be carried out
if the child or incapable person objects or resists.
44
135.
The proposed section is consistent with clause 68 of the 2000 Model Bill.
Proposed section 23XWV - Retention of forensic material by order of a
magistrate after withdrawal of consent
136.
Proposed section 23XWV explains what is to happen if consent is
withdrawn after a forensic procedure under this Division has been carried out.
Ordinarily, the forensic material must be removed from the national DNA database
system otherwise prosecution for the commission of a criminal offence is possible
(see the offence in proposed subsection 23YDAG(2) at item 65 of this Bill). In
some situations it may be necessary to retain the forensic material notwithstanding
the withdrawal of consent - the typical example may be where the person
withdraws consent because they conclude that suspicion has turned in their
direction. Accordingly, in the investigation of a serious offence, it is proposed that
an authorised applicant may seek a magistrate’s order to retain the material. The
magistrate may make the order only if he or she is satisfied of the matters in
subsection 23XWV(2).
137.
In summary, these matters relate to whether the material taken from the
volunteer is likely to have probative value in the context of a serious offence for
which there is forensic material available (such as material from the crime scene)
which could identify the perpetrator, and whether the retention is justified in all the
circumstances. The purpose is to authorise retention only where the material from
the volunteer is likely to be useful in proceedings regarding the serious offence.
138.
The proposed section is consistent with clause 69 of the 2000 Model Bill
which is based on section 464ZGF of the Crimes Act 1958 (Victoria) and provides
45
for a stricter standard than that which applies to suspects or offenders in
recognition that the material was originally obtained voluntarily.
Item 57 - Inadmissibility of evidence from improper forensic procedures etc
(proposed paragraph 23XX(1)(a))
139.
This proposed amendment is technical, though important. It is proposed to
extend the rules regarding inadmissibility of evidence obtained from the improper
carrying out of forensic procedures to persons generally. The protection was
previously available to suspects only. It is important that offenders and volunteers
who provide forensic material are accorded the same safeguards and guarantees as
suspects because the rules of inadmissibility in subsequent proceedings is an
important safeguard. This safeguard underpins compliance by law enforcement
agencies with the rules set out in Part 1D of the Crimes Act 1914. This provision is
also consistent with a line of High Court of Australia decisions regarding the
importance to be attached to compliance with statutory criminal investigative
procedures (see, for example, Bunning v Cross (1978) 141 CLR 54; Ridgeway v R
(1995) 184 CLR 19).
140.
The proposed amendment is consistent with subclause 70(1) of the 2000
Model Bill.
Item 58 - Inadmissibility of evidence from improper forensic procedures etc
(proposed paragraph 23XX(1)(b))
141.
The proposed amendment is required for similar purposes to those
articulated with respect to item 57 above, only this time, the inadmissibility
protection is proposed to be extended to cover non-compliance with rules
46
governing the use of forensic material stored on the national DNA database
system.
142.
Proposed subparagraph 23XW(1)(b)(i) retains the existing protection in
paragraph 23XWB(1)(b) of the Crimes Act 1914 in relation to the restrictions
applying to the use of evidence relating to forensic procedures carried out under
Part 1D (including material or other information generated from such procedures)
where there was a breach of, or failure to comply with, the Bill. Proposed
subparagraph 23WXB(1)(b)(ii) applies that protection to the use of information
generated as a result of a breach of, or failure to comply with, the provisions
relating to the recording or use of information on the DNA data system in proposed
new Division 8A.
143.
The proposed amendment is consistent with clause 70 of the 2000 Model
Bill and the High Court of Australia decisions mentioned under item 57 above.
Items 58A to 58E – Admissibility rules
144.
These items amend existing sections 23XX, 23XY, 23YA of the Crimes Act
1914 to ensure that the admissibility rules extend beyond suspects to the offender
and volunteer contexts. The proposed amendments will provide the same
protection to offenders and volunteers as is accorded suspects, including the
requirement to destroy forensic material once it has been found to be inadmissible.
47
Item 59 - Destruction of certain forensic material obtained by court order
(proposed paragraph 23YC(a))
145.
The proposed amendment to paragraph 23YC(a) is intended to ensure that
material obtained from a suspect under an interim order is destroyed as soon as
practicable after an order is disallowed. This is an improvement on the current
situation under section 23YC(a) where no time limit for destruction is set - there is
just a bare requirement that the forensic material be destroyed.
146.
The proposed amendment is consistent with subclause 75(1) of the 2000
Model Bill.
Item 60 - Destruction of certain forensic material obtained by court order
(proposed subsection 23YC(2))
147.
Proposed subsection 23YC(2), deals with orders made by magistrates under
sections 23XWU and 23XWV (the provisions dealing with volunteers).
The
provision acknowledges that a magistrate, in exercising his or her discretion, can
set time limits for retaining forensic material when it makes those orders and
requires the material to be destroyed once the relevant retention period expires.
148.
The proposed amendment is consistent with subclause 75(2) of the 2000
Model Bill.
48
Item 61 - Destruction of certain forensic material (proposed subsection
23YD(1))
149.
The proposed amendment to section 23YD is technical. It ensures forensic
material from volunteers and offenders is subject to the appropriate destruction
rules (and not those rules in section 23YD which deal with the destruction of
forensic material obtained from suspects). Different destruction rules apply for
volunteers and offenders. For example, a volunteer can agree with the
Commissioner as to the time limit for retention of forensic material provided by
that volunteer (see proposed paragraph 23XWR(2)(d) and the offence in proposed
subsection 23YDAG(2)). For offenders, refer to proposed section 23YDAA which
requires the destruction of forensic material as soon as practicable after an
offender’s conviction is quashed.
150.
The proposed amendment is consistent with subclause 77(1) of the 2000
Model Bill.
Item 62 - Destruction of forensic material after 12 months (proposed
subsection 23YD(2))
151.
This proposed amendment changes existing section 23YD(2) so that
forensic material obtained from a suspect does not have to be destroyed after 12
months if a warrant for apprehension of the suspect has been issued. If the suspect
is wanted in relation to the commission of an offence it is reasonable that the
forensic material stored on the national DNA database system be retained for the
purposes of investigating the new offence.
49
152.
The proposed amendment is consistent with subclause 77(2) of the 2000
Model Bill. This change was a result of submissions made in consultation.
Item 63 - Destruction of forensic material (proposed subsections 23YD(4), (5),
(6), (7) and (8))
153.
Proposed subsection 23YD(4) is the companion to subsection 23YD(2) and
ensures that if a warrant has been issued the forensic material must be destroyed
after the warrant lapses or a period of 12 months lapses after the suspect is
apprehended under the warrant.
154.
The period for retaining forensic material obtained from suspects can be
extended by a magistrate on application by the Commonwealth Director of Public
Prosecutions. Proposed subsections 23YD(5) to (8) contain the procedures to be
followed in such applications and include the right of the person from whom the
forensic material was obtained to have his or her lawyer make representations to
the magistrate regarding the extension. These proposed provisions are consistent
with existing subsection 23YD(4) which allows for the Commonwealth Director of
Public Prosecutions to apply for an extension. The proposed new provisions
provide a more exhaustive description of the relevant procedures and were in
response to the consultation on the 2000 Model Bill.
155.
Bill.
The proposed subsections are consistent with clause 77 of the 2000 Model
50
Item 64 - Destruction of forensic material (proposed sections 23YDAA and
23YDAB)
Proposed section 23YDAA - Destruction of forensic material taken from
offender after conviction quashed
156.
Proposed section 23YDAA ensures that if an offender’s conviction is
subsequently quashed, forensic material taken from that offender pursuant to an
order of a constable or a judge or magistrate is destroyed. Note that destruction
includes destroying the means of identifying the material (see item 36, proposed
subsection 23WA(5)).
157.
The proposed section is consistent with clause 76 of the 2000 Model Bill.
Proposed section 23YDAB - Destruction of forensic material if related
evidence is inadmissible
158.
The proposed section requires the destruction of forensic material where a
magistrate has found that evidence relating to that material is inadmissible under
section 23XX (the inadmissibility rules). The purpose is to ensure that once
improperly obtained forensic material has been found inadmissible, it is destroyed
so that it can never be used.
159.
The proposed section is consistent with clause 78 of the 2000 Model Bill.
51
Item 65 - DNA Database System (proposed Division 8A)
Proposed Division 8A - DNA Database System
160.
This proposed Division deals with the establishment and operation of the
proposed DNA database system. It is intended that substantially similar legislation
be enacted by other Australian jurisdictions so that a national DNA database
system, similar to the national fingerprint database, can be established to assist
with national law enforcement activities. The Commonwealth Government has
contributed $50 million towards the establishment of CrimTrac, including the
national DNA database system, national fingerprint system and much better access
to operational policing information.
161.
The proposed Division is consistent with Division 11 of the 2000 Model
Bill.
Proposed section 23YDAC - Definitions relating to DNA database system
162.
The proposed section defines key concepts and terms relating to the national
DNA database system, including definitions of the indexes which are to comprise
the database. The information derived from a sample of DNA from forensic
material by laboratory analysis is known as a DNA profile. DNA profiles will be
stored in particular indexes depending on the source of the forensic material from
which the DNA profile was derived.
163.
The various indexes to be included on the national DNA database system
are the result of considerable discussion between Australian jurisdictions, the
52
Federal Privacy Commissioner and in consultation during the development of the
2000 Model Bill.
164.
The serious offenders index is to contain DNA profiles derived from
forensic material taken from serious offenders taken under proposed Division 6A
and equivalent provisions in other jurisdictions, and can also contain DNA profiles
from suspects who are subsequently convicted of prescribed offences - this will
avoid the need to carry out another forensic procedure after the suspect is
convicted of an offence.
165.
As well as DNA profiles derived from forensic procedures carried out under
the Bill, the DNA system will include a crime scene index, an unknown deceased
persons index, a missing persons index and a statistical index. It should also be
noted that DNA profiles from known deceased persons may be included on the
volunteers (unlimited purposes) index.
166.
The statistical index cannot include any information which can be used to
identify an individual.
167.
The proposed indexes are consistent with those included in clause 79 of the
2000 Model Bill.
Proposed section 23YDAD - Supply of forensic material for purposes of DNA
database
168.
The purpose of proposed section 23YDAD is to protect the integrity of the
database system by preventing the inclusion of certain forensic material on the
DNA database system. It is considered that the best means of achieving this is to
53
utilise criminal sanctions to deter the improper supply of forensic material. The
only material which can be included on the DNA database system is listed in
subsection 23YDAD(3) and is, forensic material taken from:
(a)
a crime scene
(b)
a person as permitted by the Bill (that is, suspects, offenders and
volunteers - but not if the material must be destroyed under the Bill)
169.
(c)
a deceased person
(d)
a missing person
(e)
a volunteer who is a blood relative of a missing or deceased person.
It is proposed that the supply of any other forensic material to another
person so it can be analysed and included on the database system should be an
offence. The offence in subsection 23YDAD(1) targets the supply of forensic
material that is required to have been destroyed pursuant to the destruction rules
contained in Division 8 of Part 1D (for example, when the relevant conviction is
quashed). The offence in subsection 23YDAD(2) targets the supply of forensic
material that is not of a kind described as ‘excluded forensic material’ in
subsection 23YDAD(3) and outlined in paragraphs (a) - (e) above. The maximum
penalty of imprisonment for 2 years is justified because of the significant damage
that could be done to an individual or to the public confidence in the DNA
database system if someone were to breach the procedures.
170.
The proposed section is consistent with clause 80 of the 2000 Model Bill.
54
Proposed section 23YDAE - Use of information on DNA database system
171.
The purpose of proposed section 23YDAE is to protect the privacy of
information stored on the system and to prevent the misuse of DNA profiles.
172.
The offence in subsection 23YDAE(1) prohibits a person from accessing
information for improper purposes, that is, for a purpose that does not accord with
the specific purpose listed in subsection 23YDAE(2).
The penalty for
unauthorised access to information is 2 years imprisonment.
173.
This is the basic offence protecting the confidentiality of the national DNA
database system. Immense damage could be done to the reputation of someone if
forensic information was publicly disclosed. Further, the reputation of the DNA
database is dependent on the level of confidentiality maintained with the
information stored on it. If a person discloses information other than for the
legitimate purposes listed in subsection 23YDAE(2) it is appropriate that they
should face a maximum penalty of imprisonment for 2 years.
174.
The proposed section is consistent with clause 81 of the 2000 Model Bill.
Proposed section 23YDAF - Permissible matching of DNA profiles
175.
The process of comparing two DNA profiles on different indexes is known
as matching those DNA profiles. The Bill does not permit general matching
between all profiles in all indexes - only certain profiles on the indexes can be
compared with each other.
55
176.
In particular, the matching rules for the volunteers (limited purpose) index
are very restrictive to ensure that DNA profiles from volunteers are used only for
the purpose for which the forensic procedure was carried out. Given the important
role that volunteers can play in eliminating potential suspects from investigations,
thereby reducing the time and resources used by investigations, it is important that
volunteers can be confident that their forensic material will not be misused.
177.
Proposed section 23YDAF contains a table setting out the rules for
permissible matching of the DNA profiles on the various indexes of the DNA
database system. The table unequivocally sets out whether or not a particular index
can be matched against another index. As with most of proposed Division 8A, the
detail of the proposed table is the result of considerable discussion between the
Australian jurisdictions, the Federal Privacy Commissioner, CrimTrac and in
consultation during the development of the 2000 Model Bill. The table was
requested by those who will be using it.
178.
The matching rules are reinforced by the offence at subsection 23YDAF(2),
which prohibits a person from causing a match that is not permitted unless the
matching is done only for the purpose of administering the DNA database system.
The offence carries a maximum penalty of imprisonment for 2 years.
179.
The proposed section is consistent with clause 82 of the 2000 Model Bill.
Proposed section 23YDAG - Recording, retention and removal of identifying
material on DNA database system
180.
This proposed section contains offences which reinforce the destruction
requirements contained in Division 8 of Part 1D.
56
181.
Proposed section 23YDAG will ensure that the database is kept up-to-date
and will reduce the potential for impermissible matches of DNA profiles. It
applies to information derived from forensic material which is stored on the DNA
database system and which can be used to identify the person from whom the
forensic material was taken.
182.
Proposed subsection 23YDAG(1) makes it an offence to record or retain
any identifying information if the forensic material to which it relates is required to
be destroyed under the Bill. The maximum penalty prescribed is imprisonment for
2 years.
183.
Proposed subsections 23YDAG(2) and (3) make it an offence for the
person who is responsible for administering the DNA database system (the
‘responsible person’) to fail to remove within the required time frame, any
identifying material relating to:
(a)
a person from whose forensic material a DNA profile on the
volunteers (unlimited purposes) index or volunteers (limited purposes)
index is derived (see subsection 23YDAG(2)); and
(b)
an offender from whose forensic material a DNA profile on the
serious offenders index is derived and the offender has been pardoned
or acquitted of the relevant offence or if the conviction has been
quashed (see subsection 23YDAG(3)).
184.
years.
Both offences are punishable by a maximum penalty of imprisonment for 2
57
185.
Proposed subsection 23YDAG(4) also describes the relevant time periods
after which identifying material relating either to volunteers or to deceased persons
must be removed from the national DNA database system.
186.
The proposed section is consistent with clause 83 of the 2000 Model Bill.
Items 66 - 68 - Powers etc of legal representatives and interview friends
(section 23YE)
187.
These proposed amendments ensure that an offender, as well as a suspect,
can make a request or objection under Part 1D and is entitled to have a legal
representative or interview friend informed of relevant matters in relation to the
carrying out of forensic material and the retention of forensic information on the
national DNA database system.
188.
The proposed amendments are consistent with clause 88 of the 2000 Model
Bill.
Items 69 - 70 - Powers etc of legal representatives and interview friends
(section 23YE)
189.
These proposed amendments incorporate procedural fairness considerations.
The amendments ensure that the interview friend or legal representative of a
suspect or offender is informed in a language in which they are able to
communicate with reasonable fluency.
190.
Bill.
The proposed amendments are consistent with clause 88 of the 2000 Model
58
Items 71 - 72 - Obligations of investigating constables (section 23YF)
191.
These proposed amendments incorporate procedural fairness considerations.
The amendments ensure that where copies of tape recordings or opportunities to
view video recordings are required to be provided to suspects under Part 1D, they
are also provided to offenders and volunteers or their legal representatives or
interview friend.
192.
The proposed amendments are consistent with clause 89 of the 2000 Model
Bill.
Items 73 - 74 - Obligations of investigating constables (section 23YG)
193.
These proposed amendments incorporate procedural fairness considerations.
The amendments ensure that where samples, copies or other material must be made
available to suspects under Part 1D, they must also be made available to offenders
and volunteers or their legal representatives.
194.
The proposed amendments are consistent with clause 90 of the 2000 Model
Bill.
Item 75 - Time limits for providing material (subsection 23YG(2))
195.
This proposed amendment clarifies that where material must be provided by
the police to a suspect, offender, volunteer or their respective legal representatives
or interview friends it must be provided within 7 days of its coming into existence
or within 7 days of a request.
59
196.
Apart from the time limits, the proposed amendments are consistent with
clause 90 of the 2000 Model Bill. At present, section 23YG prescribes a time limit
of 7 days for the provision of material. It is proposed to adopt this more onerous
time limit of 7 days rather than adopting the 4 week time period specified in the
2000 Model Bill because it was preferred by the Parliament when the legislation
was considered in 1998. The 4 week time limit was included in the 2000 Model
Bill at the request of law enforcement agencies.
Item 75A – Subsection 23YG(2) (note)
197.
This proposed item corrects a faulty cross-reference in a legislative note.
Item 76 - Material to be provided without charge (section 23YH)
198.
This proposed amendment extends the current provision so that where
material of any kind must be given to a suspect, offender or volunteer or an
opportunity to view a video recording must be given to a suspect, offender or
volunteer the material or the opportunity must be given to the suspect, offender or
volunteer without charge.
199.
The proposed amendments are consistent with clause 91 of the 2000 Model
Bill.
Item 77 - Dealing with information obtained under Part 1D
60
Proposed section 23YN - Retention of electronic recordings
200.
This proposed section enables the Commissioner to keep recordings beyond
the period required for the investigations and prosecution of a specific crime. It
may be needed for a police disciplinary purpose. However, it would be
unreasonable to expect the police to keep it forever. It is therefore something best
left to the Commissioner.
201.
The proposed amendments are consistent with clause 98 of the 2000 Model
Bill.
Section 23YO - Disclosure of information
202.
The purpose of proposed section 23YO is to protect the privacy of persons
whose DNA profiles are included on the DNA database system or who have
undergone a forensic procedure under the Bill. Existing section 23YP, which is to
be repealed by this Bill, lists the permitted purposes for which disclosure of
forensic material derived from the carrying out of a forensic procedure can be
made. These reasons are retained in proposed subsection 23YO. The only addition
is that disclosure to the suspect, offender or volunteer to whom the information
relates is permitted.
203.
It is also important to list the permitted purposes for disclosure of
information retained on the national DNA database system. This is the purpose of
proposed subsection 23YO(2). The permitted purposes include a range of legal
proceedings, including coronial inquiries, and certain kinds of criminal
investigations. In response to recommendation 4 of the Senate Standing Legal and
Constitutional Legislation Committee paragraph 23YO(2)(g) is proposed to be
61
amended to allow disclosure to the Commonwealth Ombudsman as well as the
Federal Privacy Commissioner.
This amendment recognises the own-motion
investigation powers of both the Ombudsman and the Privacy Commissioner and
will assist in ensuring effective, independent monitoring of the national DNA
database occurs.
204.
The permitted purposes in proposed subsections (2) and (3) are underpinned
by the proposed offence in subsection 23YO(1). It is proposed that a person shall
be guilty of an offence if that person, having access to any information stored on
the DNA database system or to any other information revealed by a forensic
procedure, improperly discloses that information. The offence carries a maximum
penalty of imprisonment for 2 years. Proposed subsections 23YO(2) and (3) list the
legitimate purposes for which information can be disclosed. As stated in proposed
subsection 23YO(4), it is not an offence if the information cannot be used to
identify anyone.
205.
The proposed section is consistent with clause 96 of the 2000 Model Bill
which was developed after consultation with the Federal Privacy Commissioner.
Proposed section 23YP - Taking, retention and use of forensic material in
accordance with another law
206.
This proposed section ensures that the proposed procedures do not interfere
with the taking, retention or use of information or forensic material generated
under other State and Territory laws.
207.
It also makes it clear, in subsection 23YP(2), that information or material
that was lawfully taken under a State or Territory law can be retained or used for
62
the investigative, evidentiary and statistical purposes of the Commonwealth, even
if that retention or use would (if this section did not exist) not comply with this
Bill. Subsection 23YP(3) stipulates that the validation provision in subsection (2)
also extends to forensic material or information that is obtained lawfully under a
law of a State or Territory before the commencement of this Bill.
208.
This provision is included in recognition that Australia’s federal structure
can result in variations between legislation on the same subject matter. In this case,
the Federal Government has worked closely with the States and Territories to
achieve consistent procedures. Unfortunately, complete consistency could not be
achieved. However, the provision is consistent with the approach taken in the
Uniform Evidence Act, namely, to avoid the situation where evidence can be
excluded in one jurisdiction even where that evidence would be acceptable to a
court in another Australian jurisdiction. It would be most abnormal for it to be any
different given Australia’s federal structure.
209.
The proposed section is consistent with clause 97 of the 2000 Model Bill.
Proposed section 23YQ - Commissioner may delegate functions and powers
210.
This proposed provision allows the Commissioner to delegate his or her
functions to a constable or staff member. Constable is defined in section 3 of the
Crimes Act 1914 and means a member or special member of the Australian Federal
Police or a member of the police force or police service of a State or Territory, A
staff member is defined in the Australian Federal Police Act 1979. It is important
that the Commissioner can delegate functions to forensic experts, database
technicians, etc, as the Commissioner is not able to perform all the functions
contemplated under Part 1D by him or herself.
63
211.
This proposed section does not have an equivalent in the 2000 Model Bill.
It was realised after the finalisation of the 2000 Model Bill in February 2000 that a
power of delegation was required for the Commissioner of the AFP. There is not a
pre-existing power of delegation in the Crimes Act 1914.
Item 78 - Divisions 10 and 11
212.
This proposed item repeals these Divisions. They will be superseded by
Division 9 as amended by this Bill and new Division 8A respectively.
Item 79 - Renumbering Division 12
213.
This proposed item renumbers Division 12 as Division 10 of Part 1D.
Item 80 - Application of other laws
214.
This
proposed
amendment
ensures
that
the
operation
of
any
Commonwealth, State or Territory laws allowing the carrying out of breath
analysis or a breath test or the production of samples of blood and urine to
determine the level of alcohol or drugs, if any, present in a person’s blood is not
limited or excluded by Part 1D.
215.
The proposed amendment is consistent with subclause 84(1) of the 2000
Model Bill.
64
Item 81 - Proposed Division 11 - Interjurisdictional enforcement
216.
The purpose of this proposed Division 11 is to enable orders for the
carrying out of forensic procedures that were made in one jurisdiction to be
enforced in another jurisdiction, to deal with persons subject to those orders who
move between jurisdictions. From a Commonwealth perspective, this provision is
critical as the enforcement of a forensic procedures order relating to a
Commonwealth offender or a person suspected of committing a Commonwealth
offence will, from time to time, involve a State or Territory jurisdiction. It is
envisaged that other Australian jurisdictions will include equivalent provisions in
their legislation. For example, this provision would be very useful with respect to
an offence under ACT law committed in Canberra by a suspect living in
Queanbeyan, which is in NSW jurisdiction.
217.
The proposed Division is consistent with Division 13 of the 2000 Model
Bill.
Proposed section 23YUA - Definitions relating to interstate enforcement
218.
This proposed section explains key terms and concepts used in this Part of
the Bill. A term of particular importance is “corresponding law”, which means
another jurisdiction’s law that is in substantially similar terms to this Bill.
219.
The proposed section is consistent with clause 85 of the 2000 Model Bill.
65
Proposed section 23YUB - Registration of orders
220.
This proposed section enables the Minister to make agreements with other
jurisdictions which have corresponding laws (these jurisdictions are referred to in
the Bill as participating jurisdictions) about registering, in one or more
jurisdictions, orders for carrying out forensic procedures under this Bill and the
corresponding laws. The section also provides for reciprocal enforcement: orders
from participating jurisdictions which are registered by such arrangements can be
enforced by the Commonwealth. This is an important provision in the context of
Commonwealth-State-Territory cooperation regarding the national DNA database
system.
221.
The proposed section is consistent with subclause 86 of the 2000 Model
Bill.
Proposed section 23YUC - Carrying out of registered orders
222.
It is proposed that the forensic procedures covered by an interstate order can
only be carried out in the way set out in Division 6. In other words, they must be
carried out in the same way as orders made under this Bill.
223.
The proposed section is consistent with subclause 86 of the 2000 Model
Bill.
Proposed section 23YUD - Database information
224.
The proposed section in the Bill enables the Minister to enter into
agreements with participating jurisdictions for sharing information on the national
66
DNA database system for the purposes of criminal investigations. The proposed
section allows for the sharing of information on that database.
225.
Information provided to or by the Commonwealth cannot be retained or
recorded in any database which can be used to determine a person’s identity if this
Bill or a corresponding law requires the destruction of the forensic material from
which the information was derived.
226.
The proposed section is consistent with clause 87 of the 2000 Model Bill.
Item 81A – Section 23YT
227.
This item repeals existing section 23YT of the Crimes Act 1914, which is
no longer required in light of the provisions regulating the carrying out of forensic
procedures on offenders and volunteers.
Item 82 - Renumbering Division 13
228.
This proposed item renumbers Division 13 as Division 12 of Part 1D.
Items 83 – 86 – Independent review
229.
This item amends existing section 23YV of the Crimes Act 1914 to give
effect to Recommendation 4 of the Senate Standing Legal and Constitutional
Legislation Committee report on the Bill. Four changes to section 23YV are
proposed to:
(1)
ensure that the independent review considers:
67
(i)
the effectiveness of independent oversight and accountability
mechanisms for the DNA database system;
(ii) any disparities between the legislative and regulatory regimes of the
Commonwealth and participating jurisdictions for the collection and use
of DNA evidence;
(iii) any issues relating to privacy or civil liberties arising from forensic
procedures permitted by this part;
(2)
postpone the independent review until 12 months after the commencement of
the provisions to be inserted by this Bill, including those relating to the
national DNA database system;
(3)
insert a nominee of the Privacy Commissioner into the independent review
team; and
(4)
ensure the Minister causes a further independent review to be undertaken if
the written report tabled in Parliament identifies any inadequacies.
The
Minister must cause the independent review to be undertaken within 2 years
of the tabling of the initial written report.
SCHEDULE 2 – AMENDMENTS TO THE MUTUAL ASSISTANCE IN
CRIMINAL MATTERS ACT 1987
Item 1 - Section 3 – Definition of “foreign restraining order”
230.
The purpose of this proposed amendment is to ensure that Australia is in a
position to fulfil its obligations at international law in respect of the provision of
assistance to foreign countries in the enforcement of foreign orders which have the
intended purpose of preserving suspected proceeds of crime.
68
231.
The proposed amendment recognises that regimes established in foreign
jurisdictions for the purpose of facilitating the preservation and confiscation of
proceeds of crime may operate on a different basis from the regime established in
Australia under the Proceeds of Crime Act 1987, and accordingly may result in the
issue of orders which are in a different form from those routinely issued under
domestic law.
Items 2 and 3 - Subsection 34(7) – Enforcement of foreign restraining order
232.
The purpose of this proposed amendment is to make it clear that a foreign
restraining order, whatever its terms, once registered in an Australian court, will
take effect as if it were an order in the form of a restraining order made under
domestic law. Consequently, property the subject of a foreign restraining order
will be dealt with in the same manner as property the subject of a domestic
restraining order.