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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
CRIMES
AMENDMENT (FORENSIC PROCEDURES) BILL
2000
EXPLANATORY
MEMORANDUM
(Circulated by the authority
of the Minister for Justice and Customs,
Senator the
Honourable Amanda Vanstone)
ISBN: 0642 451044
CRIMES (FORENSIC PROCEDURES) BILL
2000
EXPLANATORY
MEMORANDUM
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.
3. The objects of this Bill
are:
(a) 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.
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.
Compliments 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.
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):
(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.
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).
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 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.
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
2000.
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 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).
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. 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.
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.
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 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’; ‘non-intimate
forensic procedure’; ‘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 ‘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 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 a 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). 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.
Item 37 -
Sub-heading
50. This proposed item alters the
heading for Division 2 of Part 1D so that it better reflects the content of
Division 2.
Item 38 -
Sub-heading
51. 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))
52. 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).
53. The
proposed amendment adopts the approach taken in subclause 8(1) of the 2000 Model
Bill.
Items 40 & 41 - Matters that suspect
must be informed of before giving consent (proposed paragraphs 23WJ(1)(ia) and
(k))
54. 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.
55. These proposed amendments adopt the approach
taken in subclause 9(1) of the 2000 Model Bill.
Item 42 -
Sub-heading
56. This item alters the heading
for Division 4 of Part 1D so that it better reflects the content of Division
4.
Item 43 -
Sub-heading
57. 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)
58. 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))
59. 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.
Item 46 -
Sub-heading
60. 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)
61. 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.
62. 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))
63. This item alters a cross-reference in
light of the insertion of proposed subsection 23XM(4) by this
Bill.
Item 49 - video recordings (proposed
subsection 23XM(3))
64. 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))
65. 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.
66. 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 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.
67. 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))
68. 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.
69. The proposed amendment reflects the
approach taken in clause 38 of the 2000 Model
Bill.
Item 52 - video recordings (proposed
subsection 23XM(3))
70. 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))
71. 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))
72. 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
the original intention of the existing legislation and is consistent with
subclause 40(3) of the 2000 Model Bill.
Item 55
- Preventing the carrying out of forensic procedure (proposed section
23XWA)
73. 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.
74. The proposed
offence is consistent with that included in clause 48 of the 1995 and 2000 Model
Bills.
Item 56 - Convicted offenders and
volunteers (proposed Divisions 6A and
6B)
75. 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
76. 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
77. Proposed subsections 23XWB(1) and
(2) stipulate that only a limited range of forensic procedures may be carried
out on convicted offenders. The permitted procedures are taking blood samples
and buccal swabs, which are intimate forensic procedures, and hair samples
(non-pubic only) and fingerprints which are non-intimate forensic procedures. No
other forensic procedure is authorised by this Division.
78. 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.
79. 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
80. 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 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.
81. The proposed
subsection is consistent with clause 50 of the 2000 Model
Bill.
Proposed section 23XWD - Intimate forensic
procedures authorised to be carried
out
82. 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.
83. The proposed section is consistent
with clause 51 of the 2000 Model Bill.
Proposed
section 23XWE - Application of Division
6
84. 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 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;
(d) regarding who may be present; and
(e) that the giving of informed consent must be
recorded.
85. All these procedures are just as
relevant to the carrying out of forensic procedures on
offenders.
86. The proposed section is consistent
with clause 52 of the 2000 Model Bill.
Proposed
section 23XWF - Scope of authorisation
87. 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.
88. The proposed
section is consistent with clause 53 of the 2000 Model
Bill.
Proposed section 23XWG - Informed consent
to forensic procedure
89. 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.
90. 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
91. 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.
92. The proposed section is consistent
with clause 55 of the 2000 Model Bill.
Proposed
section 23XWI - Matters to be considered by constable before requesting consent
to forensic procedure
93. 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.
94. The proposed section is consistent with
clause 56 of the 2000 Model Bill.
Proposed
section 23XWJ - Matters that offender must be informed of before giving
consent
95. 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).
96. 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 non-intimate forensic
procedure
97. 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.
98. The
proposed section is consistent with clause 58 of the 2000 Model
Bill.
Proposed section 23XWL - Matters to be
considered by constable
99. 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) whether
the order would be justified in all the
circumstances.
100. 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.
101. 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.
Proposed section 23XWM - Recording of
giving of information and consent
102. 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.
103. The
proposed section is consistent with clause 60 of the 2000 Model
Bill.
Proposed section 23XWN - Record of
constable’s order
104. 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.
105. 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
106. 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 a constable 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 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.
107. 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).
108. 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.
109. 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
110. 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 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.
111. 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.
112. 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
113. 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.
Proposed section 23XWQ - Carrying out
of forensic procedures on
volunteers
114. 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.
115. 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.
116. 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.
117. 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,
118. 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.
119. 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.
120. 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
121. 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 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 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.
122. 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
123. 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.
124. The proposed section is consistent
with clause 66 of the 2000 Model Bill.
Proposed
section 23XWT - Withdrawal of
consent
125. 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.
126. 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.
127. 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.
128. The proposed section
is consistent with clause 67 of the 2000 Model
Bill.
Proposed section 23XWU - Circumstances in
which magistrate may order carrying out of forensic procedure on child or
incapable person
129. 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.
130. 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) the
circumstances.
131. 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.
132. 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
133. 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).
134. 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.
135. 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 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))
136. 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).
137. 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))
138. 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 governing the use of forensic
material stored on the national DNA database
system.
139. 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.
140. 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.
Item 59 -
Destruction of certain forensic material obtained by court order (proposed
paragraph 23YC(a))
141. 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.
142. 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))
143. 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.
144. The proposed amendment is consistent with
subclause 75(2) of the 2000 Model Bill.
Item 61
- Destruction of certain forensic material (proposed subsection
23YD(1))
145. 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.
146. 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))
147. 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.
148. 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))
149. 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.
150. 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.
151. The proposed
subsections are consistent with clause 77 of the 2000 Model
Bill.
Item 64 - Destruction of forensic material
(proposed sections 23YDAA and
23YDAB)
Proposed section 23YDAA -
Destruction of forensic material taken from offender after conviction
quashed
152. 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)).
153. 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
154. 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.
155. The proposed section is
consistent with clause 78 of the 2000 Model
Bill.
Item 65 - DNA Database System (proposed
Division 8A)
Proposed Division 8A - DNA
Database System
156. 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.
157. The proposed Division
is consistent with Division 11 of the 2000 Model
Bill.
Proposed section 23YDAC - Definitions
relating to DNA database system
158. 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.
159. The various
indexes to be included on the national DNA database system are the result of
considerable discussion between Australian jurisdictions, the Federal Privacy
Commissioner and in consultation during the development of the 2000 Model
Bill.
160. 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.
161. 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.
162. The statistical index cannot include
any information which can be used to identify an
individual.
163. 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
164. 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 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)
(c) a deceased
person
(d) a missing
person
(e) a volunteer who is a blood relative of a
missing or deceased person.
165. 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.
166. The proposed section is consistent
with clause 80 of the 2000 Model Bill.
Proposed
section 23YDAE - Use of information on DNA database
system
167. 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.
168. 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.
169. 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.
170. The proposed
section is consistent with clause 81 of the 2000 Model
Bill.
Proposed section 23YDAF - Permissible
matching of DNA profiles
171. 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.
172. 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.
173. 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.
174. 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.
175. 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
176. This proposed section contains
offences which reinforce the destruction requirements contained in Division 8
of Part 1D.
177. 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.
178. 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.
179. 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)).
180. Both
offences are punishable by a maximum penalty of imprisonment for 2
years.
181. 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.
182. 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)
183. 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.
184. 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)
185. 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.
186. The proposed amendments are
consistent with clause 88 of the 2000 Model
Bill.
Items 71 - 72 - Obligations of
investigating constables (section
23YF)
187. 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.
188. The proposed amendments are consistent with
clause 89 of the 2000 Model Bill.
Items 73 - 74
- Obligations of investigating constables (section
23YG)
189. 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.
190. The proposed amendments are
consistent with clause 90 of the 2000 Model
Bill.
Item 75 - Time limits for providing
material (subsection 23YG(2))
191. 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.
192. 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 76
- Material to be provided without charge (section
23YH)
193. 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.
194. The proposed amendments are consistent
with clause 91 of the 2000 Model Bill.
Item 77 -
Dealing with information obtained under Part 1D
Proposed section 23YN - Retention of
electronic recordings
195. 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.
196. The proposed amendments are
consistent with clause 98 of the 2000 Model
Bill.
Section 23YO - Disclosure of
information
197. 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.
198. 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.
199. 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.
200. 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
201. 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.
202. 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 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.
203. 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.
204. The
proposed section is consistent with clause 97 of the 2000 Model
Bill.
Proposed section 23YQ - Commissioner may
delegate functions and powers
205. 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.
206. 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
207. 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
208. This proposed item renumbers
Division 12 as Division 10 of Part 1D.
Item 80 -
Application of other laws
209. 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.
210. The proposed amendment is consistent
with subclause 84(1) of the 2000 Model
Bill.
Item 81 - Proposed Division 11 -
Interjurisdictional enforcement
211. 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.
212. The proposed
Division is consistent with Division 13 of the 2000 Model
Bill.
Proposed section 23YUA - Definitions
relating to interstate enforcement
213. 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.
214. The proposed section is consistent with
clause 85 of the 2000 Model Bill.
Proposed
section 23YUB - Registration of
orders
215. 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 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.
216. The proposed section is consistent
with subclause 86 of the 2000 Model
Bill.
Proposed section 23YUC - Carrying out of
registered orders
217. 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.
218. The
proposed section is consistent with subclause 86 of the 2000 Model
Bill.
Proposed section 23YUD - Database
information
219. The proposed section in the
Bill enables the Minister to enter into agreements with participating
jurisdictions for sharing information on the national DNA database system for
the purposes of criminal investigations. The proposed section allows for the
sharing of information on that
database.
220. 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.
221. The proposed section is consistent
with clause 87 of the 2000 Model Bill.
Item 82 -
Renumbering Division 13
222. This proposed item
renumbers Division 13 as Division 12 of Part
1D.
SCHEDULE 2 – AMENDMENTS TO THE
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT
1987
Item 1 - Section 3 –
Definition of “foreign restraining
order”
223. 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.
224. 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
225. 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.