Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Chris Ellison)Outline and financial impact statement
Outline
The recent bombing attack in Bali has resulted in the formation of a Joint Investigation Team consisting of Indonesian, Australian and other law enforcement officials for the purpose of investigating the bombing. The Australian Federal Police (AFP) has advised that its function within the Team includes the collection of forensic material from suspects, crime scenes, unknown deceased persons and items associated with missing persons (such as combs, toothbrushes) or blood relatives of those persons in Bali.
State and Territory police services have commenced collecting forensic material from personal items associated with those persons reported missing, or samples from blood relatives who are volunteers. In some instances, those police services will be analysing the material to derive a DNA profile. In other cases, the material will be transferred to the AFP for the purpose of DNA profiling.
The purpose of the Bill is to ensure that information on a DNA database that is produced from the collection of the forensic material is able to be accessed and disclosed for the purposes of:
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- advising of the identity of the unknown deceased persons killed as a result of the Bali bombing incident; and
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- assisting the Joint Investigation Team in its investigation of the Bali bombing incident.
The DNA profiles are defined as part of a DNA database system and under the current provisions of the Crimes Act 1914 (the Act) there are limits on access that information (see section 23YDAE) and on disclosing that information (see section 23YO). Legislation in some States and Territories contains similar provisions.
As the national DNA database system was established for criminal investigation and not for Disaster Victim Identification (DVI), this Bill will amend the disclosure provisions to ensure the Commonwealth can disclose information solely for the purpose of identification of victims of the Bali bombing incident (and not for a law enforcement purpose only).
Under the current provisions, and in the absence of arrangements between the jurisdictions, States and Territories cannot access their DNA database systems for the purpose of transferring DNA profiles to the Commonwealth and the Commonwealth cannot disclose the information held (eg., the results of a matching) to the States and Territories.
It is proposed to modify those provisions so that the AFP may access a DNA database system and disclose information contained thereon in certain circumstances. It is also proposed to include a provision modifying the State and Territory legislation to enable the transfer of the information held on DNA database systems.
The proposed legislation will apply to the forensic materials being collected, the DNA profiles taken therefrom and the results of matchings of DNA profiles for the Bali bombing. It is proposed that the legislation be available for other incidents where Australian citizens are killed overseas and where the Minister has made a determination that activates the provisions. This determination will be a disallowable instrument.
It is also proposed that there be an independent review of the operation of the Division, 12 months after it has commenced.
Financial impact statement
There are no direct financial impacts from this Bill.
As the effect of the proposed legislation is to enable information and results to be shared between the Commonwealth and States and Territories, it is expected that there will be no financial impact. While the actual cost of Disaster Victim Identification (DVI) DNA testing could be significant, the financial impact of the proposed legislative change allowing for the exchange and release of information will be negligible.