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Crimes (Amendment) Bill
Circulation Print
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EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out that the purposes of the Act are to--
amend the Crimes Act 1958 to provide for the admissibility of
certain fingerscans in court proceedings, to provide for non-
intimate compulsory procedures to be conducted on the
authorisation of a senior police officer, to validate certain court
orders for the taking of forensic samples and to clarify for the
future an offender's right to notice and to be heard on
applications for those orders; and
to amend the Metropolitan Fire Brigades Act 1958 to provide
for the appointment of a Deputy President of the Metropolitan
Fire and Emergency Services Board.
Clause 2 provides for the commencement of the Act on the day after it
receives Royal Assent.
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Clause 3 inserts a new definition of "fingerscan" into section 464 of the
Crimes Act 1958 and provides an example of taking fingerprints
by use of a scanning device.
Clause 4 inserts a new section 464N(1) of the Crimes Act 1958 to provide
that fingerprints may be taken using a fingerscan or by other
means.
Clause 5 repeals section 464NA(1) of the Crimes Act 1958. Clause 5
amends section 464NA(6) of the Crimes Act 1958 by clarifying
that a fingerscan taken under section 464NA of the Crimes Act
1958 is inadmissible in any proceeding. Section 464NA(7)
presently deals with access, use, recording and other treatment
of fingerscans which are not required to be destroyed under
section 464O of the Crimes Act 1958. Clause 5 amends that
sub-section by restricting those uses and treatments to
fingerscans taken under section 464NA.
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Clause 6 amends section 464O of the Crimes Act 1958 by extending the
definition of "fingerprints" (which refers to fingerscans taken
under section 464NA) to also refer to fingerscans taken under
any other provision of Subdivision (30A) of Part III of the
Crimes Act 1958.
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Clause 7 makes a similar amendment to the definition of "fingerprints"
contained in section 464P(1A) of the Crimes Act 1958.
Clause 8 inserts in section 464 of the Crimes Act 1958 a new definition of
"senior police officer", being the rank within Victoria Police of or
above which a member may authorise the new compulsory
procedure.
Clause 9 amends section 464B of the Crimes Act 1958. That section
currently provides for a process whereby an investigating official
may apply to the appropriate court for an order that a person who
is held in certain facilities (including a prison or a police gaol, or
a facility pursuant to the Mental Health Act 1986, or the
Intellectually Disabled Persons' Services Act 1986, or detained
under certain provisions of the Sentencing Act 1991) and who is
reasonably suspected of having committed an offence other than
the offence for which he or she is being held, be delivered into
the custody of the investigating official for the purpose of
questioning or investigation. A new paragraph (c) is inserted into
section 464B(5G), providing that if a person was held in a prison
or police gaol at the time of making the application for a court
order, the person against whom the order is made must be
informed that the making of the order for questioning or
investigation does not prevent a senior police officer from
authorising the conduct of a non-intimate compulsory procedure
on the person under the new section 464SA.
Clause 9 also amends section 464B of the Crimes Act 1958 by
inserting a new sub-section (9A). Section 464B(9A) provides
that the making of an order under section 464B(5) does not
prevent a senior police officer from giving an authorisation under
section 464SA. Section 464B(5) allows the court to order the
transfer of the custody of the person for the purpose of
questioning or investigation for a maximum period of time
specified in the order, being a reasonable period within which the
questioning or investigation may occur.
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Clause 10 amends section 464R of the Crimes Act 1958 to extend the
operation of that section to cover the new process of
authorisation by a senior police officer under new section 464SA.
Section 464R(2) currently provides that a forensic procedure may
be conducted on a person who has given consent, or is subject to
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a court order.
Clause 11 amends section 464S of the Crimes Act 1958. That section sets
out a process of informed consent by a person to a request to
undergo a forensic procedure. The amendment adds to the list of
matters of which the person must be informed, by requiring that,
in certain circumstances, he or she also be informed that where a
refusal is made to undergo a procedure, a senior police officer
may authorise the procedure under section 464SA.
Clause 12 inserts new sections 464SA and 464SB into the Crimes Act
1958.
New section 464SA provides that a senior police officer who is
not involved in investigating the relevant offence may authorise
the conduct of a non-intimate compulsory procedure for certain
adults who have not consented to the procedure on request.
The procedure is defined to mean the taking of a non-intimate
sample or the conduct of a physical examination of a non-
intimate part of the body. In order to make the authorisation the
senior police officer must be satisfied of a number of matters.
These include--
· the person in respect of whom an authorisation may be
made must be under lawful arrest or in custody pursuant
to an order made under section 464B(5) of the Crimes
Act 1958;
· an authorisation cannot be made in respect of a person
who is under the age of 17 years or who is incapable of
giving informed consent by reason of mental
impairment;
· there are reasonable grounds to believe that the person
has committed the offence in respect of which the
authorisation is sought;
· in all the circumstances the giving of the authorisation is
justified.
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Section 464SA(3) further provides that an authorisation must not
be given where an application to a court for an order under
Subdivision (30A) in respect of that person has been made in
relation to the same matter and on the same grounds but has been
refused or where a previous application for an authorisation
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under this section has been considered but has not been given.
An authorisation given in contravention of sub-section (3) is
void. A later application for an order or an authorisation can,
however, be made on different or further grounds.
New section 464SB sets out a number of matters relating to the
procedure for making or refusing authorisations. Before a senior
police officer makes a decision, he or she must allow the suspect
or the suspect's legal practitioner, if any, a reasonable opportunity
to inform the officer whether there is any reason why the
non-intimate compulsory procedure should not be conducted.
If the senior police officer determines to give the authorisation,
the suspect must be informed orally that the authorisation has
been given, the type of sample or examination authorised, that a
member of the police force may use reasonable force to enable
the compulsory procedure to be conducted and, if appropriate,
that the suspect may elect to provide a mouth scraping instead of
a hair sample. The giving of the information must be recorded.
If the senior police officer refuses to give an authorisation, the
suspect must be informed, both orally and in writing, of that
decision.
Clause 13 amends section 464Z of the Crimes Act 1958 by providing that a
person in respect of whom an authorisation or a court order is
made for taking a sample of hair (other than pubic hair) may elect
instead to provide a scraping taken by the person from his or her
mouth, if it is appropriate to provide a scraping. This allows the
person to elect to use an alternative, less intrusive physical
process. The clause also amends section 464Z to provide for the
method by which a sample of hair may be taken.
Clause 14 substitutes section 464ZA(1) of the Crimes Act 1958 to provide
for the manner in which an order, and now an authorisation, may
be conducted. Section 464ZA(5) is amended to extend the video-
recording of forensic procedures to those authorised by senior
police officers. Other consequential amendments to the process
set out in this section are also made.
Clause 15 makes a consequential amendment to section 464ZD of the
Crimes Act 1958 by including a reference to the new police
authorisation process. That section requires that a copy of any
forensic reports be given or sent to a person on whom a forensic
procedure has been conducted.
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Clause 16 amends section 464ZF of the Crimes Act 1958 to clarify rights
to notice and to be heard in relation to applications under that
section.
Clause 17 amends section 464ZFB to include a reference to the new
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authorisations under section 464SA. This section sets out a
process for applying to the relevant court for certain orders in
respect of retention of samples, and related information and
material.
Clause 18 amends section 464ZFE of the Crimes Act 1958 to extend
reporting requirements under that section to cover the number
of police authorisations granted or refused.
Clause 19 amends section 464ZH(a) of the Crimes Act 1958 by extending
the immunity provided for medical practitioners and other
personnel assisting in the taking of samples.
Clause 20 amends section 464ZI to refer to the further reduction of the
Supreme Court's jurisdiction because of the amendment made by
clause 19.
Clause 21 provides for the validation of certain orders purporting to have
been made under section 464ZF(2) and (3) of the Crimes Act
1958 before the commencement of this Act, and provides that
such orders are not invalid only because the person was not
given notice of the application or an opportunity to be heard.
The validation is specified not to affect the decision known as
Pavic v Magistrates' Court of Victoria and Chief Commissioner
of Police (No. 1001 of 2002).
PART 3--AMENDMENTS TO THE METROPOLITAN FIRE
BRIGADES ACT 1958
Clause 22 amends sections 9 and 18 of the Metropolitan Fire Brigades
Act 1958 by providing for the appointment of a Deputy President
to the Board, and making arrangements for the person to preside
at meetings of the Board.
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