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Crimes (DNA Database) Bill
As Sent Print
EXPLANATORY MEMORANDUM
Clause 1 provides that the purpose of the Bill is to amend the Crimes Act
1958 to facilitate Victoria's participation in the national DNA
database system and to amend procedures for the obtaining, use
and retention of forensic samples.
Clause 2 provides for the commencement of this Bill. The Bill (except
clause 17(2)) comes into operation on the day after the day on
which it receives Royal Assent. Clause 17(2) is deemed to have
come into operation on the commencement of section 16(1)(c) of
the Drugs, Poisons and Controlled Substances (Amendment)
Act 2001.
Clause 3 provides that the Crimes Act 1958 is called the Principal Act in
this Bill.
Clause 4 inserts new headings in the Principal Act.
Clause 5 inserts new definitions in section 464(2) of the Principal Act.
The new definitions are based on the February 2000 Model
Forensic Procedures Bill ("the Model Bill") developed by the
Model Criminal Code Officers' Committee under the auspices of
the Standing Committee of Attorneys-General. The new
definitions explain key concepts and terms relating to the national
DNA database system, including definitions of the indexes which
are to comprise the database.
New definition "appropriate authority" is referred to in new
section 464ZGL(3).
New definition "corresponding law" refers to a law of another
jurisdiction relating to the carrying out of forensic procedures and
DNA databases that substantially corresponds to the law in
Victoria or is prescribed for the purposes of this definition.
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541200 BILL LA AS SENT 1/3/2002
New definitions "crime scene index", "missing persons
index", "serious offenders index", "statistical index",
"suspects index", "unknown deceased persons index",
"volunteers (limited purposes) index" and "volunteers
(unlimited purposes index)" are referred to in new
section 464ZGI.
New definition "DNA database", paragraph (a) provides for the
existence of two DNA databases in Victoria, namely the DNA
database referred to in section 464ZFD of the Principal Act and
the "DNA database system" established by this Bill.
A computerised database already exists in Victoria by virtue of
section 464ZFD of the Principal Act. This database is not
compatible with the national DNA database scheme.
Therefore the Bill creates a new "DNA database system", which
will enable Victoria to store and match DNA profiles in a manner
that is consistent with the national scheme. It is necessary to
retain Victoria's existing database so that information retained on
this database can be kept and used for the purposes of criminal
investigations in Victoria. Information stored on this database
could only be exchanged with another jurisdiction if it is
transferred to the new "DNA database system".
New definition "DNA database", paragraph (b) refers to a DNA
database that is kept under a corresponding law of a participating
jurisdiction.
New definition "DNA database system" means a database
containing one or more indexes of DNA profiles. The "DNA
database system" has been created by this Bill to facilitate
Victoria's participation in the national DNA database scheme.
New definition "forensic material" means any material from
which a DNA profile may be derived and which is obtained from
samples taken or procedures conducted in accordance with
Part 3, Division 1, Subdivision (30A) of the Principal Act.
The definition of "forensic material" does not include a sample
taken for the sole purpose of establishing the identity of the
person from whom it is taken.
New definition "participating jurisdiction" means the
Commonwealth, another State or a Territory in which there is a
corresponding law in force.
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New definition "responsible Minister" is referred to in new
sections 464ZGL and 464ZGN.
New definition "volunteer" means a person who volunteers to
give a sample under section 464ZGB of the Principal Act.
Clause 6 inserts new paragraph (ea) in section 464S(1) of the Principal
Act. This new paragraph means that a suspect, before giving his
or her informed consent to the conduct of a forensic procedure,
must be informed by a member of the police force that
information obtained from analysis of forensic material will be
placed on a DNA database and may be used for the purpose of a
criminal investigation or any other purpose for which the DNA
database may be used.
Clause 7 inserts new sub-sections (1A) and (3A) to (3D) in section 464Z
of the Principal Act to provide that where an intimate sample is
to be taken from a person, there is nothing to prevent that person
from taking their own sample of a scraping of the mouth, subject
to the supervision of an authorised police officer. The person
must consent to this method of providing a sample and the police
officer must consider this method to be appropriate.
The circumstances in which a police officer would consider it
inappropriate for a person to take their own mouth scraping
would be limited. A member may consider it inappropriate to
allow a person to take their own mouth scraping if the person was
bleeding from the mouth and there was a risk of injury to the
person or the police member.
New section 464Z(3A) will ensure that--
· The fact that a person has consented to conducting the
procedure themselves must be tape recorded or recorded
in writing signed by the person; and
· The procedure must either be video recorded or witnessed
by an independent person.
New section 464Z(3B) clarifies that in this circumstance, an
independent person includes a parent or guardian of the child,
where the procedure is proposed to be conducted on a child.
New section 464Z(3C) creates an exception to the requirement
that a forensic procedure conducted in accordance with new
section 464Z(3A) must either be video recorded or witnessed by
an independent person. Where the person has consented to
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providing their own sample, rather than having been ordered by a
court to provide the sample, the person may waive the
requirement for the procedure to be conducted in the presence of
an independent person or video recorded. The fact that a person
has waived this requirement must be either tape recorded or
evidenced in writing signed by the person.
New sub-section (9) provides that the requirement in section
464Z(6)(ab) of the Principal Act that a witness to the taking of a
sample be of the same sex as the person from whom the sample is
taken, does not apply where a person takes their own mouth
scraping.
Clause 8 amends section 464ZE(1) of the Principal Act to provide that the
admissibility of evidence relating to forensic procedures is
subject to new section 464ZGO.
Clause 9 inserts new sub-section (2A) in section 464ZF of the Principal
Act. New sub-section (2A) provides that where a court makes an
order under section 464ZF(2) of the Principal Act, directing a
person, who is not in custody, to undergo a forensic procedure,
the order must include a direction that the person attend a
specified place within a specified period to undergo the
procedure. This ensures that there is a mechanism in place to
enable the forensic procedure to be carried out.
Clause 10 inserts new section 464ZFAA in the Principal Act. This new
section applies where--
· a court has made an order requiring a person to undergo a
forensic procedure under section 464ZF(2) of the
Principal Act prior to the commencement of section 10 of
the Crimes (DNA Database) Act 2001, and that order
has not been executed; or
· a court has made an order, under section 464ZF(2) of the
Principal Act, in respect of a detained or protected person
and that person is released from custody prior to the order
being executed.
In these circumstances, new section 464ZFAA provides that a
senior sergeant may serve a notice directing the person to attend
at a specified police station within a period of 28 days to undergo
the court ordered forensic procedure.
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Where a notice is issued in respect of a person who has been
released from custody, prior to the execution of an order under
section 464ZF(2), new section 464ZFAA(1)(a)(ii) provides that
the notice must be served within six months of that person's
release from custody.
New section 464ZFAA(2) sets out particulars of the information
that must be contained in the notice.
New section 464ZFAA(3) provides that a copy of the order made
under section 464ZF(2) must be attached to and served with the
notice.
New section 464ZFAA(4) provides for the manner in which the
notice may be served.
New section 464ZFAA(5) provides that if a notice is served by
post, evidence of service must state the manner of ascertainment
of the address to which the notice was posted and the time and
place of posting.
If a person does not comply with this notice, new section
464ZFAA(6) provides that, a member of the police force may
apply to a magistrate or registrar for the issue of a warrant to
arrest that person. New section 464ZFAA(7) provides that a
warrant issued under this section authorises the person to arrest
and detain the person for as long as is reasonably necessary to
enable the conduct of the forensic procedure.
Clause 11 inserts new sub-sections (1A), (1B) and (7) in section 464ZFA of
the Principal Act and makes various amendments to sub-sections
464ZFA(2), (3), (4), (5) and (6) of the Principal Act.
New sub-sections (1A) and (1B) provide that if a person does not
comply with a court order to attend a specified place within a
specified period to undergo a forensic procedure, a member of
the police force may apply to a magistrate or registrar for the
issue of a warrant to arrest that person. A warrant issued under
this sub-section authorises the police to arrest and detain the
person for as long as is reasonably necessary to enable the
conduct of the forensic procedure.
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New sub-section (7) provides that a member of the police force
who executes a warrant under the new warrant provisions, must
as soon as practicable, after executing the warrant, endorse the
warrant to that effect and lodge a report with a registrar of the
Magistrates' Court containing particulars, such as the date and
time at which the person was arrested.
Clause 12 amends section 464ZFB(1) of the Principal Act to provide that an
application for a retention order can be made to the court of
hearing (including the County and Supreme Courts) or the
Magistrates' Court or Children's Court any time after the finding
of guilt but not later than 6 months after the expiry of the appeal
period or the final determination of an appeal.
New sub-section (2A) in section 464ZFB of the Principal Act
provides that a retention order made before the expiry of the
appeal period or the final determination of an appeal will take
effect on that expiry or final determination and will have no
effect if the finding of guilt is quashed on appeal.
Under the existing legislation an application for a retention order
can only be made to the Magistrates' Court or the Children's
Court and such an application can not be made until after the
expiry of the appeal period or the final determination of an
appeal.
Clause 13 amends section 464ZFD(2) of the Principal Act to provide that
the existing computerised database in Victoria is described as the
"DNA database".
Clause 14 amends the informed consent provisions for volunteers contained
in section 464ZGB(3)(b) of the Principal Act to provide that a
volunteer must be informed that DNA information obtained may
be used for the purpose of a criminal investigation or any other
purpose for which the DNA database may be used.
New paragraph (ba) in section 464ZGB(3) of the Principal Act
provides that a volunteer must be informed that they have a
choice as to whether DNA information obtained from analysis of
their sample is used for a limited purpose (eg. the missing
persons index) or for any purpose for which the DNA database
may be used.
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New paragraph (bb) in section 464ZGB(3) of the Principal Act
provides that a volunteer must be informed that information
obtained from the analysis could produce evidence to be used in a
court.
Clause 15 inserts new headings and new sections 464ZGG to 464ZGO in
the Principal Act.
New section 464ZGG creates offences to prevent unauthorised
analysis of forensic material and to prevent the inclusion of
certain forensic material on the DNA database system.
The offences created by new section 464ZGG are based on
the offences in clause 80 of the Model Bill.
New section 464ZGG(1) defines the terms "excluded forensic
material" and "prohibited analysis".
The definition of "excluded forensic material" lists the only
material which can be included on the DNA database system.
The definition includes material found at a crime scene and
forensic material taken from a convicted offender in accordance
with section 464ZF of the Principal Act. Material defined as
"excluded forensic material" can be supplied to a person for
analysis for the purpose of deriving a DNA profile for inclusion
on a DNA database.
"Prohibited analysis" means analysis for the purpose of deriving
a DNA profile for inclusion on a DNA database when the
forensic material is required to be destroyed.
Analysis of material required to be destroyed--New section
464ZGG(2) provides that it is an offence for a person to
intentionally or recklessly cause the supply of any forensic
material (including "excluded forensic material") for prohibited
analysis. The maximum penalty for this offence is 1 year
imprisonment or a maximum fine of 120 penalty units.
Analysis of material not permitted to be analysed--New section
464ZGG(3) provides that it is an offence for a person to
intentionally or recklessly cause the supply of forensic material
(other than excluded forensic material) to a person for analysis
for the purpose of deriving a DNA profile for inclusion on a
DNA database. The maximum penalty for this offence is 1 year
imprisonment or a maximum fine of 120 penalty units.
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New section 464ZGH(1) provides that it is an offence for a
person to access information stored on the DNA database except
in accordance with this section. The maximum penalty for this
offence is 1 year imprisonment or a maximum fine of 120 penalty
units.
The offence created by new section 464ZGH is based on
clause 81 of the Model Bill.
New section 464ZGH(2) sets out the purposes for which
information stored on the DNA database system can be accessed.
New section 464ZGI(1) sets out the permissible matching of
DNA profiles. The process of comparing two DNA profiles is
referred to as matching. The Bill provides that the DNA database
system is divided into a serious of indexes. For example, there is
a suspects index, a crime scene index and a missing persons
index. DNA profiles are stored on these separate indexes. The
Bill does not permit general matching between all profiles in all
indexes. Profiles can only be matched with profiles in other
indexes according to the tabulated matching rules, which are set
out in this new section.
New section 464ZGI(2) reinforces the matching rules by
providing that it is an offence for a person to intentionally or
recklessly cause the matching of a DNA profile with a DNA
profile on an index other than in accordance with new section
464ZG(1). The maximum penalty for this offence is one year
imprisonment or a maximum fine of 120 penalty units.
New section 464ZGI is based on clause 82 of the Model Bill.
New section 464ZGJ creates offences relating to the recording,
retention and removal of identifying information from the DNA
database system. These offences are based on the offences in
clause 83 of the Model Bill.
New section 464ZGJ(1) defines the terms "identifying
information", "identifying period" and "responsible person".
New section 464ZGJ(2) provides that it is an offence for a person
to intentionally or recklessly cause any identifying information to
be recorded or retained in a DNA database system after it is
required to be destroyed. The maximum penalty for this offence
is one year imprisonment or a maximum fine of 120 penalty
units. This offence reinforces the destruction requirements.
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New section 464ZGJ(3) provides that it is an offence for any
identifying information relating to a DNA profile on the
volunteers index to be retained for more than a period of
12 months (unless the volunteer agrees to it being kept for a
longer period.). The maximum penalty for this offence is one
year imprisonment or a maximum fine of 120 penalty units.
New section 464ZGJ(4) provides that it is an offence if a
responsible person does not ensure that identifying information
relating to a DNA profile on the serious offenders index is
removed from the DNA database system as soon as practicable
after becoming aware that the offender has been pardoned or
acquitted or the conviction has been quashed. Generally the
material on the serious offenders index would be kept for an
unrestricted period. The maximum penalty for this offence is one
year imprisonment or a maximum fine of 120 penalty units.
New section 464ZGK(1) provides that it is an offence to
intentionally or recklessly disclose--
· Any information stored on the DNA database system; or
· Any other information revealed by the carrying out of a
forensic procedure
other than for the permissible purposes listed in new section
464ZGK(2) and new section 464ZGK(3). The maximum penalty
for the offence is one year imprisonment or a maximum fine of
120 penalty units.
This is the basic offence protecting the confidentiality of the
DNA database and is based on clause 96 of the Model Bill.
New sections 464ZGL and 464ZGM enable orders for the
carrying out of forensic procedures that were made in one
jurisdiction to be registered and enforced in another jurisdiction
where a person who is subject to such an order moves between
jurisdictions. These new provisions are based on clause 86 of the
Model Bill.
New section 464ZGN provides that Victoria can enter into
arrangements with other Australian jurisdictions under which
information from a DNA database may be transmitted elsewhere
in Australia. The nature of these arrangements will be
determined administratively. This new section is based on clause
87 of the Model Bill.
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New section 464ZGO is included in recognition that Australia's
federal system can result in variations between legislation on the
same subject matter. The new section addresses the situation
where evidence can be excluded in one jurisdiction even where
that evidence would be acceptable to a court in another
jurisdiction.
New section 464ZGO is based on clause 97 of the Model Bill.
New section 464ZGO(1) provides that nothing in this
Subdivision interferes with the taking, retention or use of forensic
material or information obtained from forensic material
authorised under the laws of another Australian jurisdiction. This
means that forensic material can be taken, retained and used in
Victoria provided its taking, retention or use is authorised by the
law of another Australian jurisdiction.
New section 464ZGO(2) provides that information or forensic
material that was lawfully taken under the law of another
Australian jurisdiction can be retained or used for investigative,
evidentiary and statistical purposes even if that retention or use
would not comply with any provision of Part 3, Division 1,
Subdivision (30A) of the Principal Act as it relates to the carrying
out of forensic procedures. This makes it clear, for example, that
forensic material or information that has been taken in
accordance with a corresponding law of another Australian
jurisdiction may used in evidence in court in Victoria, even if its
retention or use would contravene the relevant provisions in
Victoria relating to the carrying out of forensic procedures. The
new provision does not preclude a court from exercising its
general discretion to exclude evidence (the taking of which has
been authorised by the law of another Australian jurisdiction) on
other grounds (for example if the evidence was unfairly
obtained).
New section 464ZGO(3) stipulates that the provisions in new
subsection (2) also extend to forensic material or information that
is obtained lawfully under the law of another Australian
jurisdiction before the commencement of clause 15 of this Bill.
Clause 16 amends the definition of "relevant suspect" in section 464(2) of
the Principal Act. The definition of "relevant suspect" was
amended by the Crimes (Amendment) Act 1997 to include
offences under section 248 of the Principal Act. At that time
section 248 was the offence section relevant to the
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"contamination of goods". Section 5 of the Crimes
(Amendment) Act 1998 substituted a new section 248, which
was an interpretive section and added new offence sections 249,
250 and 251. This Bill amends the definition of "relevant
suspect" in section 464 to reflect this change. (Clause 17 amends
the definition of "forensic sample offence" in item 21 of Schedule
8 of the Principal Act to also reflect this change.)
Clause 17(1) amends Schedule 8 to the Principal Act to provide that the
following offences are defined as "forensic sample offences"--
· The common law offence of false imprisonment
· Offences against sections 249, 250 or 251 of the
Principal Act (offences relating to the "contamination of
goods")
· An offence against section 317 of the Principal Act
(offences connected with explosive substances) or 317A
(bomb hoaxes) of the Principal Act
· An offence against section 325(1) of the Principal Act
(assisting offender).
Clause 17(2) contains statute law revision amendments. Clause 17(2) inserts
the name of the Act, namely the Drugs, Poisons and
Controlled Substances Act 1981, in the references to offences
in items 22 to 28 of Schedule 8 to the Principal Act. Section
16(1)(c) of the Drugs, Poisons and Controlled Substances
(Amendment) Act 2001 inserted these items but omitted
reference to the Act name.
Clause 18 inserts new section 596 in the Principal Act, which contains
transitional provisions.
New section 596(1) provides that the amendments made by
section 7 of the Crimes (DNA Database) Act 2001, which
provide that a person may take their own mouth scraping, apply
to the taking of scrapings on or after the commencement of
section 7 of that Act.
New section 596(2) provides that the amendments made by
section 12 of the Crimes (DNA Database) Act 2001, which
enable a court of hearing to make a retention order upon a finding
of guilt, apply to a person found guilty of an offence on or after
the commencement of section 12 of that Act.
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New section 596(3) provides that the amendments in relation to
the taking, retention and use of forensic material authorised by
laws of other jurisdictions, made by section 15 of the Crimes
(DNA Database) Act 2001 apply to any offence or suspected
offence irrespective of when the offence is alleged to have been
committed.
New section 596(4) provides that the amendments in relation to
the definition of "relevant suspect" made by section 16 of the
Crimes (DNA Database) Act 2001 only apply to offences
alleged to have been committed after the commencement of
section 16 of that Act.
New section 596(5) provides that the amendments in relation to
the definition of "forensic sample offences" made by section
17(1) of the Crimes (DNA Database) Act 2001 only apply to
offences alleged to have been committed after the
commencement of section 17(1) of that Act.
New section 596(6) provides that an offence alleged to have been
committed between two dates, one before and one after the
commencement of section 16 or 17(1) of the Crimes (DNA
Database) Act 2001, alleged to have been committed before that
commencement.
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