Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Daryl Williams AM QC MP)Schedule 1 - Amendment of the crimes Act 1914
Part 1 - Taking offenders' fingerprints and photographs
The purpose of this Part is to make two minor amendments to section 3ZL of the Crimes Act 1914 to clarify and facilitate the operation of the provision in relation to taking fingerprints from and photographs of a person convicted of an offence.
This Item clarifies that an order by a judge or magistrate under subsection 3ZL(1) may be made in relation to both taking a convicted person's fingerprints and photograph. That is, that the provision is not limited to an order in relation to the taking of fingerprints or photographs.
This Item would insert proposed subsection 3ZL(3A) to provide that the judge or magistrate may make any additional orders that are reasonably necessary (for example, that the convicted person attend at a police station at a specified time) to ensure that the fingerprints and/or photographs of the convicted person are taken in accordance with the order given under subsection 3ZL(1).
This Item would also insert proposed subsections 3ZL(3B) and (3C) to provide that it is an offence for a person to intentionally contravene an order made under proposed subsection 3ZL(3A). Proposed subsections 3ZL(3B) and (3C) have been drafted in accordance with the Criminal Code . The maximum penalty for contravening subsection 3ZL(3B) is imprisonment for 12 months.
Part 2 - Identification parades
Section 3ZM of the Crimes Act governs the conduct of identification parades. Subsection 3ZM(3) imposes an obligation on police officers to inform a suspect of certain prescribed matters prior to his or her participation in an identification parade. The purpose of subsection 3ZM(3) is to ensure that a suspect has the opportunity to make an informed decision about whether or not to participate in a parade.
The purpose of this Part is to clarify a misleading provision so that a suspect is informed how evidence of refusing to take part in an identification parade may be used in later proceedings.
This Item would repeal paragraph 3ZM(3)(b) and insert two new subparagraphs.
The first proposed subparagraph clarifies what a suspect is told about the use that may be made of evidence of a refusal to take part in an identification parade. As currently drafted, the information provided may lead the suspect to believe that evidence of a refusal, without reasonable excuse, may be used in subsequent criminal proceedings as evidence of the suspect's guilt. That is not the case. The proposed provision provides that the suspect is to be informed that evidence of refusal may be admissible in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held.
This reflects the common law position (which is preserved in this respect by subsection 3ZM(7)) that evidence of a refusal to participate in an identification parade is not admissible to establish a defendant's guilt. As this rule exists irrespective of whether the suspect did or did not have a reasonable excuse for refusing to participate in the identification parade, the proposed provision also removes the reference to refusing "without reasonable excuse". That is, whether or not a suspect has a reasonable excuse for refusing to take part in the identification parade is irrelevant to the use that may later be made of that refusal.
The second proposed subparagraph maintains the current provision for informing the suspect that any evidence of identification that results from having seen a photograph or of having seen the suspect otherwise than during an identification parade may be admissible in later proceedings.
Part 3 - Dealing summarily with some indictable offences
The purpose of the proposed amendments in this Part is to extend the class of indictable offences that may be dealt with summarily.
This Item would amend subsection 4J(4) to increase the threshold for when a court of summary jurisdiction may hear and determine proceedings in respect of an indictable Commonwealth offence if the offence relates to property. The threshold value in ss4J(4) is currently no more that $500. This Item increases the threshold to $5,000.
The monetary threshold under subsection 4J(4) has not been changed since section 4J was inserted into the Crimes Act in 1987. The amendment will ensure that the monetary threshold is appropriate to current economic circumstances. The amendment will also allow more offences to be dealt with in local courts, which employ speedier procedures, consistent with the Government's broader efforts to ensure a more efficient criminal trial process.
This Item provides that the amendments proposed by Item 4 only apply to indictable offences committed after this Act receives the Royal Assent.
This Item inserts proposed section 4JA to increase the circumstances in which certain indictable offences may be dealt with summarily. Section 4J of the Crimes Act makes provision for the summary disposition of indictable offences where the offence is one punishable by imprisonment for a period not exceeding ten years. However, there is no like provision for the summary disposition of offences that carry a pecuniary penalty only, no matter how small the penalty.
This is ameliorated to a large extent if the particular statute imposing the pecuniary penalty for an offence expressly makes provision for the offence to be dealt with summarily, and many (but not all) Commonwealth statutes containing indictable offences make such provision. However, in the absence of such provision, the offence must be tried by indictment.
The proposed amendment, which is modelled on section 4J, will enable a court of summary jurisdiction to hear and determine indictable offences that are not punishable by imprisonment, where the pecuniary penalty is not more that 600 penalty units (for an individual) and 3,000 (for a body corporate) and the defendant and prosecution consent.
The proposed provision will also provide two levels of pecuniary penalty that a court of summary jurisdiction may impose depending on the penalty set for the offence. For offences where the maximum pecuniary penalty is 300 penalty units (for an individual) or 1,500 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 60 penalty units (for an individual) or 300 penalty units (for a body corporate).
Where the maximum pecuniary penalty is 600 penalty units (for an individual) or 3,000 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 120 or 600 penalty units respectively. The court of summary jurisdiction may not impose a pecuniary penalty higher than that which could have been imposed had the matter been prosecuted on indictment.
However, the proposed provisions will not apply if there is a contrary intention in the law creating the offence. They will also not apply to indictable offences created by a law that already enables the matter to be determined summarily or to offences dealing with property valued at $5,000 or less (as these are addressed by subsection 4J(4)).
This Item provides that the amendment proposed by Item 6 applies to proceedings instituted after this Act receives the Royal Assent, irrespective of when the offence was committed.
Part 3A - Forensic Procedures
This Item would amend the forensic procedures regime contained in the Crimes Act to alter the matching table in section 23YDAF and allow for the matching of the DNA profile of an unknown deceased person with another DNA profile of an unknown deceased person.
This amendment is necessary in light of the experiences from the Bali bombing in October 2002, where it was necessary for DNA from separate body parts to be matched to determine whether they came from the same body. Such matching may assist in the identification of unknown deceased persons or in the investigation of Commonwealth offences that occur in Australia, including terrorist incidents.
This Item would make a technical amendment to the definition of 'corresponding law'. The purpose of the amendment is to clarify that the definition of a corresponding law is a law that relates to the carrying out of forensic procedures and DNA databases, and substantially corresponds with Part 1D of the Crimes Act, or a law that relates to the carrying out of forensic procedures and DNA databases, and is prescribed by the regulations for the purposes of the definition.
As currently drafted, there is a doubt whether a corresponding law that is prescribed by the regulations has to relate to the carrying out of forensic procedures and DNA databases. The proposed amendment makes it clear that this must be the case and also assists in addressing problems raised by the circular nature of the definition of 'DNA databases' referred to below.
This amendment also clarifies the operation of Division 11 of Part 1D of the Crimes Act and the ability of the Commonwealth Minister to enter into arrangements about the DNA database system with responsible Ministers from other participating jurisdictions.
This Item would repeal the definition of 'DNA database' in section 23YUA. The purpose of the amendment is to ensure that the term 'DNA databases' in the definition of 'corresponding law' is not interpreted as having the same meaning as the definition of 'DNA database'. Repealing the definition of 'DNA database' removes any possibility of circularity of definitions and ensures that the terms 'responsible Minister' and 'participating jurisdiction' can be determined to enable the entering into of arrangements under section 23YUD.
Repealing the definition of 'DNA database' will have no effect on the references in section 23YUD to 'the DNA database system' or 'a DNA database system'. Paragraph 23YUD(1)(a) is clearly drafted to refer to 'the DNA database system of the Commonwealth' and paragraph 23YUD(1)(b) clearly refers to 'a DNA database system of the participating jurisdiction'.
Such a distinction is also clear in the Division 11A provisions that were originally intended to rely on the 'DNA database' definition (eg. sections 23YUH and 23YUI) as they specify that it is a 'DNA database' of a participating jurisdiction.
This Item would repeal subsection 23YUD(1) and replace it with new subsections 23YUD(1) and (1A).
Proposed subsection 23YUD(1) would enable the Minister to enter into arrangements, on behalf of the Commonwealth, with participating jurisdictions for sharing DNA information that may be relevant to the investigation of a matter. Previously the Minister was limited only to entering into arrangements for the investigation of an offence. The reference to 'on behalf of the Commonwealth' clarifies that the Minister is entering into such arrangements on behalf of the Commonwealth and not in his personal capacity.
What constitutes an investigation of a matter is defined in subsection 23YUD(3) and includes the investigation of an offence, the investigation of a missing person or an investigation which is conducted to identify a deceased person.
The proposed amendment is consistent with section 23YDAF which provides for permissible matching of DNA profiles on an index of the DNA database in accordance with a matching table. That matching table allows for the matching of DNA information for missing persons and unknown deceased persons.
Proposed subsection 23YUD(1) also clarifies the original intention of that section that the arrangements are not limited to mere transmission of information, but would also include the keeping and otherwise managing of such information which is associated with the transmission of information.
The purpose of proposed subsection 23YUD(1A) is to ensure that CrimTrac is not precluded from entering into memoranda of understanding or other arrangements, on behalf of the Commonwealth, with a participating jurisdiction in relation to the transmission of information to or from a DNA database system of the Commonwealth or of any participating jurisdiction. As with subsection proposed 23YUD(1) it is also made clear that the memorandum of understanding or other arrangements are not limited to the transmission of information, but can also include the keeping and otherwise managing of such information.
The reference to CrimTrac on behalf of the Commonwealth clarifies that CrimTrac is an Executive Agency and is entering into the memoranda of understanding or other arrangements as an agent of the Commonwealth and not in its own capacity.
Proposed subsection 23YUD(1A) will also clarify that the arrangements referred to in proposed subsection 23YUD(1) are not the only form of arrangements that can be entered into under Part 1D of the Crimes Act. For example, the reference to 'any arrangement' in paragraph 23YO(2)(d) is also intended to include a memorandum of understanding or other type of arrangement entered into by CrimTrac (on behalf of the Commonwealth) with another State or Territory for the provision of access to information contained in the DNA database system by law enforcement officers or by any other persons prescribed by the regulations. It is intended that CrimTrac can be a party to memoranda of understanding or other arrangements that facilitate, for example:
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- the uploading of DNA information to CrimTrac from DNA database systems of participating jurisdictions
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- intra jurisdictional matching of DNA profiles from a participating jurisdiction
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- matching between DNA profiles from a participating jurisdiction and the Commonwealth, and
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- matching between DNA profiles of two or more participating jurisdictions, other than the Commonwealth.
This Item would insert new definitional terms in section 23YUD. Those terms are consequential on the other amendments made to Part 1D of the Crimes Act by this Bill.
This Item is a transitional provision. The provision makes it clear that any arrangements entered into under subsection 23YUD(1) before the commencement of this Item and which are in force immediately before this commencement will continue to be in force after the commencement of the amendments as if the arrangements had been entered into under section 23YUD(1) as amended by this Schedule.
Part 4 - Technical corrections of sentencing and parole provisions
This Item corrects a grammatical error in the Crimes Act by replacing a semicolon with a colon in paragraph 16A(2)(f).
This Item corrects a grammatical error in the Crimes Act by inserting a comma in paragraph 19AS(1)(b).