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Crimes Amendment (DNA Database)
Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
Clause 1 states the main purpose of the Bill, which is to amend the Crimes
Act 1958 to enable national automatic matching of data on DNA
databases. The changes to the Act contained in the Bill have
arisen out of national processes through both the Standing
Committee of Attorneys-General and the Australasian Police
Ministers' Council.
Clause 2 provides that the Bill comes into operation on the day after the
day on which it receives the Royal Assent. Details of the
transitional arrangements are set out in clause 12 of the Bill.
Clause 3 provides that the Crimes Act 1958 is called the Principal Act in
the Bill.
Clause 4 amends section 464(2) of the Crimes Act 1958.
Subclause (1) substitutes a new definition of DNA database,
which includes the Victorian DNA database, the National
Criminal Investigation DNA Database (NCIDD), or another
DNA database system that is kept under a corresponding law of a
participating jurisdiction.
Subclause (2) inserts definitions of CrimTrac, National Criminal
Investigation DNA Database, NCIDD, responsible person and
Victorian DNA database.
The definition of responsible person was previously contained in
section 464ZGJ(1) but is moved to the general definitions section
as the term will now be used in more than that one provision.
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Clause 5 amends section 464ZFD of the Crimes Act 1958. The provision
remains in substance the same as the old, but is more clearly
framed.
Subclause (1) replaces the heading "Computerised databases"
with "Victorian DNA database". This amendment clarifies that
this provision deals with the Victorian DNA database specifically
(not that of any other jurisdiction).
Subclause (2) inserts a new subsection (1AA), which makes it
clear that the Victorian DNA database (now a defined term) is the
DNA database system (a term that is already defined in the Act)
kept by the Chief Commissioner of Police. The old section
464ZFD did not state this expressly, but by necessary implication
when read in the context of the surrounding provisions, for
example the Chief Commissioner of Police's annual reporting
obligations under section 464ZFE.
Subclause (3) replaces the term "a computerised database" with
"the DNA database system kept under subsection (1)".
Subclause (4) replaces the term "a DNA database" with "the
DNA database system kept under subsection (1)".
Clause 6 changes the term "system" to "systems" in the heading above
section 464GG. This amendment to the heading caters for the fact
that the following sections relate to not just a single Victorian
DNA database system, but also potentially (depending on the
provision) to other jurisdictions' DNA database systems.
Clause 7 amends section 464ZGH of the Crimes Act 1958.
Subclause (1) replaces the term "DNA database system" with
"Victorian DNA database". This is because section 464ZGH
deals specifically with the Victorian DNA database system, and
not with the systems of any other jurisdictions.
Subclause (2) replaces the existing section 464ZGH(2)(d) with a
reference to an arrangement made under the new section
464ZGN. (See note on clause 11 below.) This is a technical,
rather than substantive, change.
Subclause (3) inserts a new subparagraph (iv) in section
464ZGH(2)(g) to provide that the Director, Police Integrity can
access information stored on the Victorian DNA database for the
purposes of the investigation of a complaint.
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Clause 8 substitutes a new section 464ZGI(1), and amends section
464ZGI(2), of the Crimes Act 1958.
New subsection (1) replaces the term "DNA database system"
with "Victorian DNA database" and "the system" with "the
database". This is because section 464ZGI deals specifically
with the Victorian DNA database system, and not with the
systems of any other jurisdictions.
The new subsections 464ZGI(1)(a) and (b) are in substance the
same as the previous 464ZG(1)(b).
Subclause (1) no longer contains the previous subsection
464ZGI(1)(a). This paragraph is no longer relevant as a
consequence of the amendment to the matching table (see note
below). In other words, the new matching table in section
464ZGI(1) does not contain any "no" entries and the old section
464ZGI(1)(a) is therefore redundant.
The subclause also substitutes a new matching table in section
464ZGI(1). This table is consistent with the Queensland, NSW
and Commonwealth tables in the corresponding laws of those
jurisdictions. It removes anomalies contained in the previous
table and clarifies that a DNA profile on the index of the
Victorian DNA database can be matched with any other DNA
profile on an index of the database (with the exception of profiles
on the Volunteers (limited purposes) index, which may only be
matched for the purpose for which the profile was given).
Subclause (2) replaces the term "the DNA database system" with
"the Victorian DNA database" where it appears in existing
sections 464ZGI(2) and (3). These amendments are
consequential upon that made by subclause (1) and the use of the
new definition of "Victorian DNA database".
Clause 9 amends section 464ZGJ of the Crimes Act 1958. Taken
together, these amendments constrain the offences under section
464ZGJ to the recording, retention or failure to remove Victorian
DNA information from a DNA database (as that term is now
defined in the amended section 464. See note on clause 4(1)
above.)
Subclause (1) replaces "DNA database system" with the newly
defined term "DNA database" (see note on clause 4(1) above)
(wherever it appears in the section).
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Subclause (2) substitutes a new definition of identifying
information. The new definition makes clear that such
information relates to that referred to in amended section
464ZFD(1) of the Crimes Act 1958 (see note on clause 5
above)(whether or not such information has been kept on the
Victorian DNA database).
Subclauses (3), (4) and (5) amend the definition of identifying
period in section 464ZGJ(1) as a consequence of the new
definition of identifying information inserted by subclause (2).
Subclause (6) repeals the definition of responsible person.
As noted in clause 4 above, that term has been transferred to the
general definitions in section 464 as it is now used in provisions
other than section 464ZGJ.
Subclauses (7), (8), (10) and (11) remove words made redundant
by the new definition of identifying information inserted by
subclause (2).
Subclause (9) replaces the term "the system" with "the database"
in sections 464ZGJ(3) and (4) as a consequence of the
amendment made by subclause (1).
Clause 10 amends section 464ZGK of the Crimes Act 1958. The object of
these amendments is to make clear that the disclosure offence
and the permitted purposes for disclosure only relate to Victorian
DNA-related information.
Subclause (1) amends the heading to the section by substituting
"Victorian information" for "information". The substituted term
is defined in the new subsection (5) inserted by subclause (8).
See note below.
Subclause (2) amends section 464ZGK(1)(a) to make clear that
the offence of intentional or reckless disclosure of information
other than as permitted under subsection (2) relates to a person
who has access to Victorian information.
Subclause (3) amends section 464ZGK(1)(b) to make clear the
offence relates to the intentional or reckless disclosure of
Victorian information other than as permitted under
subsection (2).
Subclause (4) amends section 464ZGK(2) to make clear that
permitted disclosures relate to Victorian information stored on a
DNA database (as that term is now defined in the amended
section 464. See note on clause 4(1) above.)
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Subclause (5) replaces the existing section 464ZGK(2)(c) and (d)
by--
· omitting "system" from paragraph (c) to reflect the new
definition of DNA database (see note on clause 4(1)
above); and
· substituting a reference to an arrangement made under
the new section 464ZGN in paragraph (d). (See also the
notes on clauses 7(2) and 11.) This is a technical, rather
than substantive, change.
Subclause (6) amends section 464ZGK(2)(g) by adding new
subparagraphs (iv) and (v), which provide that the Director,
Police Integrity or a complaint investigation authority from
another jurisdiction respectively may disclose Victorian
information stored on a DNA database for the purposes of
investigating a complaint.
Subclause (7) amends sections 464ZGK(3) and (4) by
substituting "Victorian information" for "information".
Subclause (8) inserts a new definition of Victorian information,
which means information which can be obtained from samples
taken or procedures conducted under the Act as referred to in
section 464ZFD(1) of the Crimes Act 1958 (see note on clause 5
above)(whether or not such information has been kept on the
Victorian DNA database).
Clause 11 substitutes a new section 464ZGN of the Crimes Act 1958.
This new section sets out the arrangements that the Victorian
Minister may enter into in relation to the exchange of
information from DNA databases.
Subsection (1) provides that the Victorian Minister may enter
into an arrangement with a Minister from another Australian
jurisdiction for the exchange of information from the Victorian
DNA database or that other jurisdiction's DNA database for the
purpose of--
· a criminal investigation or prosecution for an offences
against Victorian law or the law of the other jurisdiction; or
· the identification of missing or deceased persons.
Subsection (2) provides that the Victorian Minister may enter
into an arrangement with CrimTrac (the Commonwealth agency
responsible for the administration of the NCIDD) for the
exchange of information from the Victorian DNA database or
NCIDD for the purpose of--
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· a criminal investigation or prosecution for an offences
against Victorian law or the law of a participating
jurisdiction; or
· the identification of missing or deceased persons.
Subsection (3) explains that an arrangement under the new
subsection (2) (without limiting that subsection) may provide for
CrimTrac to--
· compare information from the Victorian DNA database with
information supplied to CrimTrac from another jurisdiction's
DNA database; and
· identify for the Victorian Chief Commissioner of Police or
person responsible for a DNA database in another
jurisdiction any matches resulting from such comparison.
Subsection (4) indicates that an arrangement under the new
section 464ZGN may not authorise the matching of DNA profiles
in a way that would contravene the new matching table in section
464ZGI (see note on clause 8(2) above) were the information
contained wholly within the Victorian DNA database.
Two notes are inserted under the new subsection (4) pointing to
the offences contained in sections 464ZGJ and 464ZGK relating
to the recording and retention of identifying information that
should have been destroyed and the disclosure of Victorian DNA
information other than in accordance with the permitted purposes
respectively.
Clause 12 inserts a new section 608 in the Crimes Act 1958, which
provides for the transitional provisions for the Bill.
Subsection (1) ensures that any amendment to offences in the
Crimes Act 1958 made by this Bill only apply to conduct on
or after the commencement of the amendments. See note on
clause 2 above.
Subsection (2) qualifies subsection (1) by providing that, where
an offence is alleged to have been committed between two dates
overarching the commencement of the amendments, the alleged
offence is deemed to have been committed before the
commencement date.
Subsection (3) provides that any computerised database or DNA
database kept under section 464ZFD before the amendments
made by this Bill is taken to be the DNA database system kept
by the Chief Commissioner of Police under the new section
464ZFD. See note on clause 5 above.
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Subsection (4) provides that a matching of a DNA profile under
the table in section 464ZGI before the amendments made by this
Bill continues after the amendments as if the matching occurred
under the amended table. See note on clause 8(4) above.
Subsection (5) provides that any arrangements made under
section 464ZGN before the amendments made by this Bill
continue in force after the commencement as though made under
the amended section 464ZGN. See note on clause 11, in
particular on the new section 464ZGN(1), above.
Subsection (6) inserts a definition of Amendment Act to aid the
understanding of the new subsections (1) to (5).
Clause 13 provides for the automatic repeal of this amending Act
12 months after the commencement date. As recommended by
the Scrutiny of Acts and Regulations Committee, all amending
Acts now contain an automatic repeal provision, which will save
the time and expense of having to repeal amending Acts in
statute law revision Bills. The repeal of this amending Act will
not affect in any way the operation of the amendments made by
it (see section 15(1) of the Interpretation of Legislation Act
1984).
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