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Crimes Amendment (Bail and Sentencing) Bill 2006

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2004-2005-2006

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

CRIMES AMENDMENT

(BAIL AND SENTENCING) BILL 2006

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

 



CRIMES AMENDMENT (BAIL AND SENTENCING) BILL 2006

 

GENERAL OUTLINE

 

The purpose of the Bill is to amend the sentencing and bail provisions in the Crimes Act 1914 (the Crimes Act) in accordance with the decision made by the Council of Australian Governments on 14 July 2006 following the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities on 26 June 2006.  These further amendments bring consistency to other provisions contained within the Crimes Act.

 

The amendments that are proposed to the Bill will:

 

  • remove the reference to ‘cultural background’ from subparagraph 19B(1)(i) of the Crimes Act
  • add a new subsection to section 19B to ensure that when a Court exercises its powers under section 19B it cannot take into account any form of customary law or cultural practice as a reason for excusing, justifying, requiring, lessening, or aggravating, the seriousness of the criminal behaviour
  • remove the reference to ‘cultural background and ‘religious beliefs’ from paragraphs 23WI(3)(c), 23WO(3)(c), and 23WT(3)(c) of the Crimes Act
  • repeal paragraphs 23WI(3)(d), 23WO(3)(d) and 23WT(3)(d) of the Crimes Act to remove the requirement for a constable, senior constable or magistrate to consider an Aboriginal person’s or Torres Strait Islander’s customary beliefs before requesting consent and/or making an order to conduct a forensic procedure, and
  • add new proposed subsections 23WI(4), 23WO(4) and 23WT(4) so that a constable, senior constable or magistrate will be able to consider religious beliefs, where appropriate, when deciding whether there is a less intrusive but reasonably practicable way of obtaining forensic evidence.

 

Section 19B gives the Court power to discharge an offender who has been found guilty without recording a conviction.  The amendments will make certain that a Court cannot take into account any form of customary law or cultural practice as a reason for lessening or aggravating the seriousness of the criminal behaviour that the Court is considering.

 

The amendments to sections 23WI, 23WO and 23WT will ensure that constables, senior constables and magistrates are not required to consider a suspect’s ‘cultural background’, ‘religious beliefs’ or Aboriginal customary beliefs when requesting consent for and/or ordering forensic procedures.  Constables, senior constables and magistrates will still be able to consider religious beliefs, where appropriate, in deciding what type of forensic procedure should be carried out (under proposed subsections 23WI(4), 23WO(4) and 23WT(4)).

 

Although these amendments remove explicit consideration of cultural background, and customary beliefs, there is still authority for officials to consider these matters, if it is permitted by law and in the interests of justice to do so.  The reference to ‘antecedents’ will remain in subparagraph 19B(1)(i).  A Court exercising power under section 19B will be able to have regards to the personal background of the offender when it is appropriate to do so.  Similarly, under sections 23WI, 23WO and 23WT constables, senior constables and magistrates have authority to consider any matter considered relevant when requesting consent for and/or ordering forensic procedures.  These amendments will not prohibit the consideration of these matters if they are relevant to making a decision on whether a suspect undergoes a forensic procedure.

 

FINANCIAL IMPACT

 

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

 





NOTES ON ITEMS

 

SCHEDULE 1 - Amendments

 

Amendment (1)

 

This amendment will:

·          omit the reference to ‘cultural background’ in subsection 19B(1) of the Crimes Act which deals with the matters a court should have regard to when deciding whether to discharge an offender who has been found guilty without recording a conviction, and

·          add a new subsection to section 19B to ensure that when a Court exercises its powers under section 19B it cannot take into account any form of customary law or cultural practice as a reason for lessening, or aggravating, the seriousness of the criminal behaviour.

Amendment (2)

 

There are a number of matters a constable must consider before requesting consent from a suspect to undergo a forensic procedure.  The constable may ask a suspect to undergo a forensic procedure only if he/she is satisfied that it is justified in all the circumstances.  The constable must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect. 

 

In balancing those interests, the constable must have regard to a number of matters including:

  • the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence
  • the degree of the suspect’s alleged participation in the commission of the relevant offence
  • the age, physical and mental health of the suspect (to the extent known)
  • whether there is a less intrusive but reasonably practicable way of obtaining evidence, and
  • any other matter considered relevant to balancing those interests.

 

This amendment will:

  • remove the references to ‘cultural background’ and ‘religious beliefs’ from paragraph 23WI(3)(c) of the Crimes Act so that a constable is not required to have regard to cultural background or religious beliefs before requesting consent to a forensic procedure
  • repeal paragraph 23WI(3)(d)of the Crimes Act to remove the requirement for a constable to consider Aboriginal customary belief when requesting consent to conduct a forensic procedure, and
  • add new proposed subsection 23WI(4) so that a constable will be able to consider religious beliefs, where appropriate, when deciding whether there is a less intrusive but reasonably practicable way of obtaining forensic evidence.

 

 

Amendments (3) and (4)

 

There are a number of matters a senior constable or magistrate must consider before ordering a suspect to undergo a forensic procedure.  The senior constable or magistrate may order a suspect to undergo a forensic procedure (ie without the suspect’s consent) only if he/she is satisfied that it is justified in all the circumstances.  The senior constable or magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect. 

 

In balancing those interests, the senior constable or magistrate must have regard to a number of matters including:

  • the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence
  • the degree of the suspect’s alleged participation in the commission of the relevant offence
  • the age, physical and mental health of the suspect (to the extent known)
  • whether there is a less intrusive but reasonably practicable way of obtaining evidence
  • if the suspect gives any reasons for refusing to consent- the reasons, and
  • any other matter considered relevant to balancing those interests.

 

In addition the magistrate must also consider:

  • if the suspect is a child or an incapable person- the welfare of the suspect, and
  • if the suspect is in custody:
  • the period for which the suspect has already been detained, and
  • the reasons for any delay.

 

These amendments will:

  • remove the reference to ‘cultural background’ from paragraphs 23WO(3)(c) and 23WT(3)(c) of the Crimes Act, and
  • repeal paragraphs 23WO(3)(d) and 23WT(3)(d) of the Crimes Act, and
  • add new proposed subsections 23WO(4) and 23WT(4) so that a senior constable and magistrate will be able to consider religious beliefs, where appropriate, when deciding whether there is a less intrusive but reasonably practicable way of obtaining forensic evidence.

 

The effect of amendments 2, 3 and 4 is that constables, senior constables and magistrates will not be required to consider ‘cultural background’ when considering whether to request consent for or order a suspect to undergo a forensic procedure.  They will also not be required to consider Aboriginal customary beliefs.  Constables, senior constables and magistrates will still be able to consider religious beliefs, where appropriate, in deciding what type of forensic procedure should be carried out.

 

Amendment (5)

 

This amendment is technical; it allows the amendments above to be referred to in the ‘applications of amendments’.