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Crimes Act Amendment (Forensic Procedures) Bill (No. 1) 2006

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2004-2005-2006

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

SENATE

 

 

 

 

 

CRIMES ACT AMENDMENT

(FORENSIC PROCEDURES) BILL (No.1) 2006

 

 

 

 

 

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)

 

 



CRIMES ACT AMENDMENT

(FORENSIC PROCEDURES) BILL (No.1) 2006

 

GENERAL OUTLINE

 

The purpose of the Bill is to ensure that inter-jurisdictional DNA profile matching, using the National Criminal Investigation DNA Database (NCIDD), may be implemented by all corresponding law jurisdictions within Australia.  The Crimes Act Amendment (Forensic Procedures) Bill (No. 1) 2006 (the Bill) will address specific impediments, raised by the States and Territories, which hitherto have prevented inter-jurisdictional DNA profile matching.

 

The Bill was introduced into the Parliament on 21 June 2006 and was subsequently referred to the Senate Legal and Constitutional Legislation Committee, which reported on the Bill on 1 August 2006. 

 

The proposed Government amendment implements the Senate Committee recommendation.  The proposed Government amendments also address specific concerns raised by the States and Territories after the introduction of the Bill.

 

The principal new features of the proposed amendments to this Bill are:

·          Expanding the access of State/Territory officials to the NCIDD database

·          Aligning the permissible matching of DNA profiles under Commonwealth legislation with other jurisdictions, and

·          Clarifying that Ministerial arrangements can also deal with transmission of information to and from NCIDD.

 

FINANCIAL IMPACT

 

There is no financial impact flowing directly from the offence provisions in this Bill.



NOTES ON ITEMS

 

SCHEDULE 1 - Amendments

 

Amendment (1)

 

This omits item 7 of the Crimes Act Amendment (Forensic Procedure) Bill (No. 1) 2006 (‘the Bill’) and substitutes a new section 23XSA.  This Bill amended the Crimes Act 1914 to allow security personnel to be in attendance at a forensic procedure when necessary.  Some jurisdictions have expressed concern that the word “law” in the Bill might be too restrictive in that the presence of prison officers might be authorised under prison orders and it might be disputed that such orders were ‘law’.  The amendment removes the word ‘law’ from the provision.

 

Amendment (2)

 

This omits item 20 of the Bill and substitutes a new subsection 23YDACA(2).  The amendment implements the Senate Legal and Constitutional Committee recommendation.  The original intention s234YDAC(2) was to grant access to State or Territory officials, Privacy Commissioners or Ombudsman etc to the National Criminal Investigation DNA Database (“NCIDD”).  The word “audit” was used in the Bill.  Some jurisdictions expressed concern that this word might be too narrowly interpreted and unnecessarily restricting access to authorities that only had audit functions and arguably would not permit Privacy Commissioners or the Ombudsman to access the information on NCIDD.  The amendment removes the word audit and instead says that an authority can access information on NCIDD if it is permitted by State and Territory law.  State and Territory laws can only permit access to State and Territory’s own data.  States and Territories cannot create laws that allow access to other participating jurisdictions information that is on NCIDD.

 

Amendment (3)

 

Item 26A amends s23YDAE(2) of the Crimes Act 1914.   Section 23YDAE(2) makes it an offence for a person to access information stored on the Commonwealth DNA database or NCIDD unless it is for a permitted purpose.  This amendment adds to the definition of permitted purpose.  Subsection 23YDDAE (2A) is being inserted to allow people to access information on NCIDD if it is permitted by a State or Territory law.  State and Territory laws can only permit access to State and Territory’s own information on NCIDD.  States and Territories cannot create laws that allow access to other participating jurisdictions information that is on NCIDD.

 

Amendment (4)

 

Permissible matching of DNA profiles, found in S23YDAF of the Crimes Act 1914, prevents DNA matching in certain cases.  The Report of Independent Review of Part 1D of the Crimes Act 1914 - Forensic Procedures, by Tom Sherman AO (‘the Sherman Report’) recommended that the Crimes Act should be amended to permit the matching of suspects to suspects.  This amendment implements that recommendation.  Item 27A changes the cell at table item 2, column 3 to ‘yes’. 

 

Item 27B amends the cell at table item 2, column 5 to ‘yes’.  This will allow suspect DNA profiles with volunteers who have provided their DNA samples for an ‘unlimited’ purpose. 

 

These amendments bring the Commonwealth table of permissible matching in line with Queensland and Western Australia.  Other jurisdictions are considering amending their matching tables to mirror that of Queensland.  To avoid a situation where States and Territories allow DNA profile matching in certain circumstances but the Commonwealth does not, a situation that would impede the usefulness of NCIDD, this amendment changes the permissible matching situations to mirror other jurisdictions matching table. 

 

Amendment (5)

 

Permissible matching of DNA profiles, found in S23YDAF of the Crimes Act 1914, prevents DNA matching in certain cases.  Item 28A is a consequence of Amendment (4) and changes the cell at table item 4, column 3 to ‘yes’.  This will allow suspect DNA profiles to be matched with volunteers who have provided their DNA samples for an ‘unlimited’ purpose.  There is no need to have a restriction on the use of volunteer samples that have been supplied by the person for an unrestricted purpose.

 

Item 28B changes the cell at table item 4, column 5 to ‘yes’.  This will permit volunteer DNA profiles to be matched with each other when the samples have been provided with no restrictions.  There is no need to have a restriction on the use of volunteer samples that have been supplied by the person for an unrestricted purpose.

 

These amendments bring the Commonwealth table of permissible matching in line with Queensland and Western Australia.  Other jurisdictions are considering amending their matching tables to mirror that of Queensland.  To avoid a situation where States and Territories allow DNA profile matching in certain circumstances but the Commonwealth does not, a situation that would impede the usefulness of NCIDD, this amendment changes the permissible matching situations to mirror other jurisdictions matching table. 

 

Amendment (6)

 

Item 35A amends s23YO of the Crimes Act 1914.   Section 23YO makes it an offence for a person to disclose information stored on the Commonwealth DNA database or NCIDD unless it is for a permitted purpose.  This amendment makes it clear that this offence does not apply if the access to information stored on NCIDD is permitted by a State or Territory law.  State and Territory laws can only permit access to State and Territory’s own information on NCIDD.  States and Territories cannot create laws that allow access to other participating jurisdictions information that is on NCIDD.

 

Amendment (7)

 

Section 23YUD permits the Minister, on behalf of the Commonwealth, to enter into arrangements with a State or Territory to deal with exchanging, keeping and managing DNA information.  This is the section that permits inter-jurisdictional DNA matching.  This section has been the main focus of discussions with States and Territories.  Item 41A clarifies that the arrangements can deal with using the DNA information subject to subsection 23YUD(1B).  The information. can only be used for the purpose of the investigation of a matter relating to the Commonwealth or participating jurisdiction, or the proceedings in that matter.

 



Amendment (8)

 

Subsection 23YUD(1A) permits CrimTrac to enter into memorandum of understanding or other arrangements, on behalf of the Commonwealth with a State or Territory to deal with exchanging, keeping and managing DNA information.  This is the section that permits inter-jurisdictional DNA matching.  Section 23YUD has been the main focus of discussions with States and Territories.  Item 43A clarifies that the memorandum of understanding or other arrangement can deal with using the DNA information subject to subsection 23YUD(1B).  The information can only be used for the purpose of the investigation of a matter relating to the Commonwealth or participating jurisdiction, or the proceedings in that matter.

 

Item 43B clarifies that the memorandum of understanding or other arrangement that CrimTrac enters into can include the comparing of information on NCIDD and transmitting that information to the participating jurisdiction.  The memorandum of understanding or other arrangement is restricted by s23YUD(1B).  This subsection also does not limit the arrangements that CrimTrac can enter into in subsection 23YUD(1A)