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Crimes Amendment (Forensic Procedures) Bill 2001

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1998-1999-2000-2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

CRIMES AMENDMENT (FORENSIC PROCEDURES) BILL 2000

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the Minister for Justice and Customs,

Senator the Honourable Chris Ellison)



General Outline

The Crimes Amendment (Forensic Procedures) Bill (‘the Bill’) contains important measures to regulate:

(1)    the taking of forensic material from prisoners and volunteers, adding to existing provisions in Part 1D of the Crimes Act 1914 on suspects; and

(2)    the national DNA database system to be established and administered by the CrimTrac Agency .

The proposed Government amendments to the Bill fall into 2 categories.

(1)    Proposed amendments which provide a legislative response to the Senate Standing Legal and Constitutional Legislation Committee Report on the Bill.  The Report was released on 5 December 2000 and contained four recommendations.  Proposed amendments at items (10), (11), (20) and (23) fall into this category.

(2)    Proposed amendments that make minor improvements to the Bill, ensuring that the existing forensic procedure provisions in Part 1D of the Crimes Act 1914 properly interact with the new provisions contained in the Bill.  For example, the amendments correct some cross-references, amend section headings, ensure offenders and volunteers have the same protection and safeguards accorded suspects, etc.  Proposed amendments at items (1) - (9) and (12) - (19) and (21) and (22) fall into this category.

Financial Impact

 

The amendments will have no financial impact.



Notes on items

Item 1

1.      This item amends the definition of ‘authorised applicant’ so that it correctly refers to ‘investigating constable’ instead of ‘investigating officer’. The former term is already definer in section 23WA of the Crimes Act 1914 .

Item 2

2.      This item corrects a faulty cross-reference in a legislative note.

Item 3

3.      This item replaces the existing definition of ‘order’ in section 23WA of the Crimes Act 1914 with an updated one which takes into account the new provisions contained in the Bill dealing with volunteers and offenders.  There is no change to the definition as it applies to suspects.

Item 4

4.      This item replaces the existing definition of ‘relevant offence’ in section 23WA of the Crimes Act 1914 with an updated one that takes into account the serious offender provision contained in the Bill. There is no change to the definition as it applies to suspects.

Item 5

5.      This item makes a consequential amendment to existing section 23WB in the Crimes Act 1914 so that description of who may act as a person’s interview friend extends beyond suspects to the offender and volunteer contexts.

Items 6 and 7

6.      These items are consequential amendments and relate back to item 50 of the Bill, which will ensure that a suspect has a right to have a medical practitioner or dentist present during intimate forensic procedures.  These items ensure sections 23WJ(2) and 23XP are consistent with section 23XM(3), as proposed to be amended in item 50.

Items 8 and 9

7.      These items correct proposed section 23XWO at item 56 of the Bill so that it is an authorised applicant who may apply to a judge or magistrate for an order directing a serious offender consent to the carrying out of a forensic procedure.  The definition of ‘authorised applicant’ includes the Director of Public Prosecutions whereas the term ‘constable’ does not.

Item 10

8.      This item amends proposed section 23XWR at item 56 of the Bill. The proposed amendment requires a constable to inform a volunteer that he or she has a choice as to whether information obtained from that his or her forensic material is placed on the volunteers (unlimited purposes) index of the volunteers (limited purposes) index.  The amendment gives effect to Recommendation 2 of the Senate Standing Legal and Constitutional Legislation Committee Report on the Bill.

Item 11

9.      This item makes a minor amendment to section proposed subsection 23XWV(3) at item 56 of the Bill to ensure subsection (3) is consistent with subsection (2).   The amendment gives effect to Recommendation 1 of the Senate Standing Legal and Constitutional Legislation Committee Report on the Bill.

Items 12 and 13

10.    This item amends existing sections 23XX, 23XY, 23YA of the Crimes Act 1914 and proposed section 23YDAB at item 64 of the Bill to ensure that the admissibility rules extend beyond suspects to the offender and volunteer contexts.  The amendment will provide the same protection to offenders and volunteers as is accorded suspects, including the requirement to destroy forensic material once it has been found to be inadmissible.

Item 14

11.    This item is a technical amendment to proposed section 23YDAC at item 65 of the Bill.  Paragraph (a) of the definition of ‘crime scene index’ is proposed to be amended so that it refers to an index derived under a corresponding law of another jurisdiction.

Items 15, 16 and 17

12.    This item is a technical amendment to proposed section 23YDAC at item 65 of the Bill.  The definitions of ‘suspects index’, ‘volunteers (unlimited purposes) index’ and ‘serious offenders index’ are proposed to be amended so that the reference to a corresponding law of another jurisdiction is not subject to qualification by the definitions of ‘suspects’, ‘volunteers’ and ‘serious offenders’, respectively.  Such qualification would have the unfortunate effect of rendering the references to corresponding laws meaningless.

Item 18

13.    This item is a technical amendment to proposed section 23YDAD at item 65 of the Bill.  It is necessary to ensure consistency between the amended definition of ‘suspects index’ in item 18 above and the important misuse offences in proposed section 23YDAD.

Item 19

14.    This item corrects a faulty cross-reference in a legislative note.

Item 20

15.    This item amends proposed paragraph 23YO(2)(g) at item 77 of the Bill to allow a person to disclose information to the Privacy Commissioner and the Commonwealth Ombudsman in the context of an investigation of the integrity of the national DNA database system.  Without this paragraph a person disclosing information would commit an unauthorised disclosure offence, punishable by a maximum penalty of imprisonment for 2 years.  The amendment is in response to Recommendation 4 of the Senate Standing Legal and Constitutional Legislation Committee Report on the Bill.

Item 21

16.    This item is a technical amendment to proposed section 23YUB at item 81 of the Bill.  A register of orders for the carrying out of forensic procedures may be held in more than one jurisdictions.  This amendment merely recognises this fact.

Item 22

17.    This item repeals existing section 23YT of the Crimes Act 1914 , which is no longer required in light of the provisions regulating the carrying out of forensic procedures on offenders and volunteers.

Item 23

18.    This item amends existing section 23YV of the Crimes Act 1914 to give effect to Recommendation 4 of the Senate Standing Legal and Constitutional Legislation Committee report on the Bill.  Four changes to section 23YV are proposed to:

(1)    ensure that the independent review considers the effectiveness of independent oversight and accountability mechanisms for the DNA database system;

(2)    postpone the independent review until 12 months after the commencement of the provisions to be inserted by this Bill, including those relating to the national DNA database system;

(3)    insert a nominee of the Privacy Commissioner into the independent review team; and

(4)    ensure the Minister causes a further independent review to be undertaken if the written report tabled in Parliament identifies any inadequacies.  The Minister must cause the independent review to be undertaken within 2 years of the tabling of the initial written report.