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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
EXPLANATORY MEMORANDUM
(Circulated
by authority of the Minister for Justice and
Customs, Senator the Hon Chris
Ellison)
The recent bombing attack in Bali has resulted in the formation of a
Joint Investigation Team consisting of Indonesian, Australian and other law
enforcement officials for the purpose of investigating the bombing. The
Australian Federal Police (AFP) has advised that its function within the Team
includes the collection of forensic material from suspects, crime scenes,
unknown deceased persons and items associated with missing persons (such as
combs, toothbrushes) or blood relatives of those persons in Bali.
State
and Territory police services have commenced collecting forensic material from
personal items associated with those persons reported missing, or samples from
blood relatives who are volunteers. In some instances, those police services
will be analysing the material to derive a DNA profile. In other cases, the
material will be transferred to the AFP for the purpose of DNA profiling.
The purpose of the Bill is to ensure that information on a DNA database
that is produced from the collection of the forensic material is able to be
accessed and disclosed for the purposes of:
• advising of the
identity of the unknown deceased persons killed as a result of the Bali bombing
incident; and
• assisting the Joint Investigation Team in its
investigation of the Bali bombing incident.
The DNA profiles are defined
as part of a DNA database system and under the current provisions of the
Crimes Act 1914 (the Act) there are limits on access that information
(see section 23YDAE) and on disclosing that information (see section 23YO).
Legislation in some States and Territories contains similar provisions.
As the national DNA database system was established for criminal
investigation and not for Disaster Victim Identification (DVI), this Bill will
amend the disclosure provisions to ensure the Commonwealth can disclose
information solely for the purpose of identification of victims of the Bali
bombing incident (and not for a law enforcement purpose only).
Under
the current provisions, and in the absence of arrangements between the
jurisdictions, States and Territories cannot access their DNA database systems
for the purpose of transferring DNA profiles to the Commonwealth and the
Commonwealth cannot disclose the information held (eg., the results of a
matching) to the States and Territories.
It is proposed to modify those
provisions so that the AFP may access a DNA database system and disclose
information contained thereon in certain circumstances. It is also proposed to
include a provision modifying the State and Territory legislation to enable the
transfer of the information held on DNA database systems.
The proposed legislation will apply to the forensic materials being
collected, the DNA profiles taken therefrom and the results of matchings of DNA
profiles for the Bali bombing. It is proposed that the legislation be available
for other incidents where Australian citizens are killed overseas and where the
Minister has made a determination that activates the provisions. This
determination will be a disallowable instrument.
It is also proposed that
there be an independent review of the operation of the Division, 12 months after
it has commenced.
There are no direct financial impacts from this Bill.
As the
effect of the proposed legislation is to enable information and results to be
shared between the Commonwealth and States and Territories, it is expected that
there will be no financial impact. While the actual cost of Disaster Victim
Identification (DVI) DNA testing could be significant, the financial impact of
the proposed legislative change allowing for the exchange and release of
information will be negligible.
NOTES ON CLAUSES
This clause sets out the short title by which this Act may be cited.
This clause provides that the sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent.
Items 1and 2 of Schedule 1 commence retrospectively on 12 October 2002. This is necessary so that proposed Division 11A of Part 1D can apply to the Bali bombing incident.
Item 2 of Schedule 1 commences immediately after commencement of Schedule 1 to the Australian Crime Commission Establishment Act 2002. This commencement clause is necessary in case the Bill commences before the Australian Crime Commission Establishment Bill 2002 (ACC Bill) which is currently before the Parliament. As soon as the ACC Bill commences, the reference to ‘National Crime Authority Act 1984’ in proposed subparagraph 23YUI(1)(a)(i) will be replaced with ‘Australian Crime Commission Act 2002’.
This clause provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
This Schedule inserts proposed Division 11A of Part 1D (Operation of this
Part in relation to overseas incidents).
Proposed section 23YUE
– Definitions
Proposed section 23YUE contains definitions of
terms used in proposed Division 11A of Part 1D of the Act.
incident
is defined to include a reference to a series of incidents.
permitted purpose means the purpose of identifying an
unidentified deceased person whose death has been caused by an incident to which
the Division applies. Second, it includes the purpose of conducting a criminal
investigation of an incident to which the Division applies.
Proposed
section 23YUF – Application of this Division
Proposed section
23YUF provides that this Division applies to particular incidents overseas
involving the deaths of Australian citizens and residents. The Bali bombing
incident is expressly included as an incident as is any overseas incident that
the Minister determines, in writing, to be an incident to which Division 11A of
Part 1D applies.
Proposed subsection 23YUF(2) details the matters that
the Minister must be satisfied of before making a determination that an incident
is one to which Division 11A of Part 1D applies. The amendment is confined to
the deaths of Australian citizens and residents and where it is appropriate in
the circumstances for this Division to apply in relation to the incident.
Proposed subsection 23YUF(3) provides that the Minister’s determination is
a disallowable instrument for the purposes of the Acts Interpretation Act
1901.
Proposed section 23YUG – Use of information on DNA
database system
Proposed subsection 23YUG(1) provides that despite
section 23YDAE, a person may access information stored on a DNA database system
if the access is for the purpose of forensic comparison under a State or
Territory forensic procedures/DNA database law and that comparison is for a
permitted purpose.
Proposed subsection 23YUG(1) is inserted to ensure
that a State or Territory law enforcement officer authorised to access a DNA
database system is not prevented from doing so by the section 23YDAE of the Act.
That is, provided the access is only for the purpose of forensic comparison
under the forensic procedures/DNA database law operating in the State or
Territory where the officer is located and that comparison is for a permitted
purpose (as defined).
Proposed subsection 23YUG(2) provides that
despite any forensic procedures/DNA database law of a State or Territory, a
person may access information stored on a DNA database system if the access is
for the purpose of forensic comparison under the Act and that comparison is for
a permitted purpose (as defined).
Proposed subsection 23YUG(2) is
inserted to ensure that a Commonwealth law enforcement officer authorised to
access a State/Territory DNA database system is not prevented from doing so by
any forensic procedures/DNA database law of a State or Territory. That is,
provided the access is only for the purpose of forensic comparison under the Act
and that comparison is for a permitted purpose.
Proposed subsection
23YUG(3) provides that despite any Commonwealth, State or Territory law, a
person may access information stored on a DNA database system for the purpose of
disclosing that information under section 23YUI.
Proposed section
23YUH Permissible matching of DNA profiles
Proposed subsection
23YUH(1) provides that despite section 23YDAF, a person may match a DNA profile
on the unknown deceased persons index of a DNA database system with another DNA
profile on that index if the matching is for a permitted purpose. Section
23YDAF details the permissible matching of DNA profiles between various indexes.
Proposed section 23YUH(1) is inserted to permit the matching of DNA
profiles of unknown deceased persons within the unknown deceased persons index.
This amendment is necessary to allow the matching of one body part with another
body part to determine whether they came from the same body. The matching can
only be undertaken for permitted purposes. Permitted purpose is defined in
proposed section 23YUE.
Proposed subsection 23YUH(2) provides despite any
State or Territory forensic procedures/DNA database law a person may match a DNA
profile on the unknown deceased persons index of a DNA database system with
another DNA profile on that index if the matching is for a permitted purpose.
This amendment is necessary to enable the matching of one body part with
another body part to determine whether they came from the same body. The
matching can only be undertaken for permitted purposes.
Proposed
section 23YUI Disclosure of information
Proposed subsection 23YUI(1)
outlines the circumstances in which a person may disclose information stored on
a DNA database system. This proposed subsection operates despite section 23YO,
which also deals with disclosure, or despite any law of a State or Territory
relating to forensic procedures and a DNA database system.
Proposed
subsection 23YUI(1) provides that disclosure may be made in certain
circumstances to a law enforcement agency, a foreign law enforcement agency, the
International Criminal Police Organisation (Interpol) or any other Commonwealth,
State, Territory or foreign country agency prescribed in the regulations. In
order for disclosure to be permitted, the information must be relevant to the
activities of the agency and the disclosure must be for a permitted purpose.
Permitted purpose is defined in proposed section 23YUE.
Proposed
subsection 23YUI(2) outlines additional circumstances in which a person may
disclose information stored on a DNA database system. Again, this proposed
subsection operates despite section 23YO or any law of a State or Territory
relating to forensic procedures and DNA databases. Information stored on a DNA
database system may be disclosed if the information concerns the result of a
match of an unknown deceased person’s DNA profile with a missing
person’s DNA profile, the disclosure is made to a relative, guardian,
spouse, de facto partner or friend of the deceased person.
Proposed
section 23YUJ This Division does not restrict operation of this
Part
Part 1D of the Crimes Act 1914 deals with forensic
procedures. Proposed section 23YUJ provides that Division 11A (which is
contained in Part 1D of the Crimes Act) does not limit the operation of Part 1D
in relation to the circumstances in which a person may undertake certain
activities. Those activities are accessing information stored on a DNA database
system, matching of a DNA profile on an index of a DNA database system or
disclosing information stored on a DNA database system.
The purpose of
this amendment is to preserve the operation of other access, matching and
disclosure provisions in Part 1D in relation to matters that proposed Division
11A will not apply to.
Proposed section 23YUK Review of operation of
this Division
Proposed section 23YUK provides that the Minister must
cause an independent review of the operation of Division 11A to be undertaken as
soon as possible after the commencement of the Division. The provision is
similar to section 23YV which deals with the review of the operation of the
whole of Part 1D.
Item 2
Item 2 deletes the reference to
the National Crime Authority Act 1984 in proposed subparagraph
23YUI(1)(a)(i) of the Act and substitutes the Australian Crime Commission Act
2002. Once enacted, the Australian Crime Commission Act will replace the
National Crime Authority Act 1984. The amendment is required for that
purpose. This item will commence immediately after the commencement of Schedule
1 to the Australian Crime Commission Act.