Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Chris Ellison)Schedule 1 - Amendment of the Crimes Act 1914
Item 1 Part ID (simplified outline)
This item sets out amendments to the simplified outline of Part 1D of the Crimes Act to reflect the revised arrangements regarding the matching and management of DNA profiles.
Item 2 Subsection 23WA(1)
This item inserts into the definitions of Part 1D of the Crimes Act a statement that section 23YDAC contains the definition of Commonwealth DNA database system.
Item 3 Subsection 23WA(1) (definition of DNA database system)
This item repeals the existing reference to the definition of DNA database system, which is now replaced by the definition of Commonwealth DNA database system inserted by item 2 above. This ensures that the Commonwealth DNA database is clearly distinguished from the State/Territory DNA databases.
Item 4 Subsection 23WA(1)
This item inserts into the definitions of Part 1D of the Crimes Act a statement that section 23YDAC contains the definition of the National Criminal Investigation DNA Database (NCIDD).
Item 5 Subsection 23WA(1) (definition of responsible person)
This item repeals the phrase "DNA database system", in the definition of responsible person, and substitutes the phrase "Commonwealth DNA database system" thus making it clear that Commonwealth law in relation to a person being responsible for the care of a DNA database system applies only to a person dealing with the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for persons responsible for the care of their State/Territory DNA database systems.
Item 6 Paragraph 23WJ(1)(k)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law regarding the giving of consent by a suspect for information to be included on a DNA database applies only in relation to the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws regarding consent in relation to their State/Territory DNA database systems.
Item 7 At the end of Subdivision D of Division 6 of Part 1D
This item allows prison officers to present, if the law of the relevant State/Territory allows or requires such presence, while a forensic procedure is carried out on a suspect. The aim of this amendment is to ensure the safety and security of those who carry out forensic procedures.
Item 8 Paragraph 23XWJ(1)(j)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law regarding the giving of consent by a convicted serious or prescribed offender, for information to be included on a DNA database applies only in relation to the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for regarding consent in relation to their State/Territory DNA database systems.
Item 9 Paragraphs 23XWR(2)(a), (c) and (d)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law regarding the giving of consent by a volunteer, or the parent or guardian of a volunteer, for information to be included on a DNA database applies only in relation to the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for regarding consent in relation to their State/Territory DNA database systems.
Item 10 Subparagraph 23XX(1)(b)(ii)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law regarding the inadmissibility of evidence from improper forensic procedures applies to the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for regarding the inadmissibility of DNA evidence obtained from improper forensic procedures.
Item 11 Subsection 23YD(8)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law regarding a magistrate extending the time for the destruction of forensic material applies only in relation material associated with the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for regarding the destruction of forensic material associated with their State/Territory DNA database systems.
Item 12 Division 8A of Part ID (heading)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" in the heading of Division 8A of the Crimes Act, a division which deals with forensic procedures, in order to make it clear that the forensic procedures referred to concern the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for regarding the forensic procedures associated with their State/Territory DNA database systems.
Item 13 Section 23YDAC
This item inserts a definition of Commonwealth agency into Division 8A of the Crimes Act, for the purpose of removing all doubt that any agency/authority of the Commonwealth may operate, with regard to forensic procedures, in right of the Commonwealth.
Item 14 Section 23YDAC
This item inserts into the definitions of Division 8A of the Crimes Act, a definition of the "Commonwealth DNA database system", including a non-exhaustive list of the indexes which may be contained in this database.
Item 15 Section 23YDAC (definition of DNA database system)
This item repeals the definition DNA database system which has now been replaced by the definition of "Commonwealth DNA database system", inserted into the Crimes Act by item14 above.
Item 16 Section 23YDAC
This item states that there is a DNA database that will be known as the National Criminal Investigation DNA Database or NCIDD. Note that item 20 below inserts into the Crimes Act a definition of what NCIDD is.
Item 17 Section 23YDAC
This item refers readers who use the commonly used acronym "NCIDD" to the definition of the National Criminal Investigation DNA Database.
Item 18 Section 23YDAC
This item inserts a definition of "State/Territory DNA database system" into the Division 8A of the Crimes Act.
Item 19 Section 23YDAC (paragraph (a) of the definition of volunteers (unlimited purposes) index)
This item substitutes the phrase "Commonwealth DNA database system" for the phrase "DNA database system" to make it clear that Commonwealth law regarding an index of DNA profiles obtained from volunteers, and obtained for unlimited purposes, applies only in relation material associated with the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws for the various indexes of DNA profiles associated with their State/Territory DNA database systems.
Item 20 After section 23YDAC
This item inserts a new section, 23YDACA, into the Crimes Act. This section sets out that NCIDD consists of the whole or the part of the Commonwealth DNA database and the whole or the part of the various State/Territory DNA databases. It is the national character of NCIDD that will allow inter-jurisdictional matching of DNA profiles - a potent tool in the fight against crime. The various Commonwealth, State and Territory portions of NCIDD retain their individual character, and the State/Territory portions of NCIDD may be accessed by State/Territory officials, such as, but not only, Privacy Commissioners and Ombudsmen and others with audit-like functions, in accordance with the relevant State/Territory laws.
Item 21 Paragraphs 23YDAD(1)(d) and (2)(d)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that Commonwealth law which makes it an offence to supply forensic material, intending that it be used for the purpose of deriving a DNA profile and including that profile on a DNA database even though the supply of such forensic material is not allowed under the Crimes Act, applies only in relation material associated with the Commonwealth DNA database system. The States/Territories are, of course, responsible for making laws regarding the misuse of material and profiles associated with their State/Territory DNA database systems.
Item 22 Subsection 23YDAE(1)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system or NCIDD", both in subsection 23YDAE(1) and in the heading to section 23YDAE, to make it clear that it is an offence under Commonwealth law, punishable by up to two years imprisonment, to misuse the information in both the Commonwealth DNA database system and NCIDD, which is under Commonwealth control. The States/Territories are, of course, responsible for making laws regarding the misuse of information associated with their State/Territory DNA database systems.
Item 23 Subsection 23YDAE(2)
This item replaces the phrase "stored on the DNA database system" with the phrase "stored on the Commonwealth DNA database system or NCIDD" in subsection 23YDAE(2), to make it clear that information on both the Commonwealth DNA database system and NCIDD can be accessed for administrative purposes and also the investigative/inquiry purposes set out in the Crimes Act, the Mutual Assistance in Criminal Matters Act 1987, the Extradition Act 1988, and under arrangements entered into by the Commonwealth and a State or Territory.
Item 24 Paragraph 23YDAE(2)(c)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system, NCIDD or a State/Territory database system" in paragraph 23YDAE(2)(c), to make it clear that the Commonwealth DNA database system, NCIDD, and a State/Territory database system lawfully can be accessed for administrative purposes.
Item 25 Paragraph 23YDAE(2)(d)
This item refers the reader to references to arrangements for accessing the Commonwealth DNA database system and NCIDD, entered into by the Commonwealth and a State or Territory, which occur in subsections 23YUD(1) and 23YUD(1A).
Item 26 Paragraph 23YDAE(2)(d)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system or a State/Territory DNA database system" in paragraph 23YDAE(2)(d), to make it clear that the Commonwealth DNA database system and the State/Territory DNA database systems lawfully can be accessed for the purposes, and in accordance with prescribed regulations, of any arrangements entered into by the Commonwealth and a State or Territory.
Item 27 Subsection 23YDAF(1)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that the matching table which sets out when DNA matching can or cannot be used, applies only in relation material associated with the Commonwealth DNA database system. The States/Territories are, of course, responsible for the matching tables associated with their State/Territory DNA database systems.
Item 28 Subsection 23YDAF(1) (cell at table item 2, column 7)
This item repeals the "no" in the aforementioned cell of the permissible DNA matching table and replaces it with "yes". Before this amendment the matching table allowed the matching of DNA profiles in cases involving missing persons and suspects, but not in cases involving suspects and missing persons. This was clearly a drafting error which has now been corrected.
Item 29 Subsection 23YDAF(1) (cell at table item 5, column 5)
This item repeals the "no" in the aforementioned cell of the permissible DNA matching table and replaces it with "yes". Before this amendment the matching table allowed the matching of DNA profiles in cases involving volunteers for unlimited purposes and serious offenders, but not in cases involving serious offenders and volunteers for unlimited purposes. This was clearly a drafting error which has now been corrected.
Item 30 Paragraph 23YDAF(2)(a)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that matching DNA profiles on the Commonwealth DNA database in a manner that is not in accordance with the matching table associated with the Commonwealth DNA database system, is an offence under Commonwealth law, punishable by up to two years imprisonment. The States/Territories are, of course, responsible for offences regarding activities not in accordance with the matching tables associated with their State/Territory DNA database systems.
Item 31 Subsection 23YDAF(3)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that the no offence attaches to administrative activities undertaken in relation to the Commonwealth DNA database system. The States/Territories are, of course, responsible for regulating administrative activities associated with their State/Territory DNA database systems.
Item 32 Paragraph 23YDAG(1)(a)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that retaining identifying information obtained from forensic material on the Commonwealth DNA database, after it should have been destroyed, is an offence under Commonwealth law, punishable by up to two years imprisonment. The States/Territories are, of course, responsible for offences regarding their State/Territory DNA database systems.
Item 33 Subsections 23YDAG(2) and (3)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" to make it clear that retaining identifying information concerning volunteers, for both limited and unlimited purposes, and serious offenders, on the Commonwealth DNA database, after such identifying information should have been destroyed, is an offence under Commonwealth law, punishable by up to two years imprisonment. The States/Territories are, of course, responsible for offences regarding their State/Territory DNA database systems.
Item 34 Subsection 23YDAG(4) (paragraphs (a) and (b) of the definition of identifying period)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" in the definition of "identifying period" for the purpose of giving effect to the amendment in item 33 above.
Item 35 Subsection 23YO(1)(a)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system or NCIDD" to make it clear that disclosing information on the Commonwealth DNA database or NCIDD, since it is under Commonwealth control, in a manner that is not in accordance with the Crimes Act, is an offence under Commonwealth law, punishable by up to two years imprisonment. The States/Territories are, of course, responsible for offences regarding activities not in accordance with the matching tables associated with their State/Territory DNA database systems.
Item 36 Subsection 23YO(2)
This item replaces the phrase "stored on the DNA database system" with the phrase "stored on the Commonwealth DNA database system or NCIDD" in subsection 23YDAE(2), to make it clear that information on both the Commonwealth DNA database system and NCIDD can be disclosed for administrative purposes and also the investigative/inquiry purposes set out in the Crimes Act, the Mutual Assistance in Criminal Matters Act 1987, the Extradition Act 1988, and under arrangements entered into by the Commonwealth and a State or Territory.
Item 37 Paragraph 23YO(2)(c)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system, NCIDD or a State/Territory database system" in paragraph 23YDAE(2)(c), to make it clear that information on the Commonwealth DNA database system, NCIDD, and a State/Territory database system lawfully can be disclosed for administrative purposes.
Item 38 Paragraph 23YO(2)(d)
This item refers the reader to references to arrangements for accessing the Commonwealth DNA database system and NCIDD, entered into by the Commonwealth and a State or Territory, which occur in subsections 23YUD(1) and 23YUD(1A).
Item 39 Paragraph 23YO(2)(d)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system or a State/Territory DNA database system" in paragraph 23YO(2)(d), to make it clear that information on the Commonwealth DNA database system and the State/Territory DNA database systems lawfully can be disclosed for the purposes, and in accordance with prescribed regulations, of any arrangements entered into by the Commonwealth and a State or Territory.
Item 40 Paragraph 23YUD(1)(a)
This item replaces the phrase "DNA database system of the Commonwealth" with the phrase Commonwealth DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 41 Paragraph 23YUD(1)(b)
This item replaces the phrase "a DNA database system of the participating jurisdiction" with the phrase "the State/Territory DNA database of the participating jurisdiction" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 42 Subsection 23YUD(1A)
This item amends the Crimes Act to make it clear that CrimTrac, the agency of the Commonwealth which currently oversights NCIDD, can enter into arrangements on behalf of the Commonwealth. These arrangements would be for the purposes of prevented inter-jurisdictional DNA profile matching.
Item 43 Paragraph 23YUD(1A)(a)
This item replaces the phrase "DNA database system of the Commonwealth, or a DNA database system of any participating jurisdiction" with the phrase "Commonwealth DNA database system, or any State/Territory DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 44 Subsection 23YUG(1)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system or NCIDD" in subsection 23YUG(1) and alters the heading to section 23YUG from "Use of information on DNA database system" to "Use of information on DNA database systems and NCIDD" to make it clear that information stored on both the Commonwealth DNA database system and NCIDD may be access for forensic comparison purposes in accordance with the relevant law of a State or Territory.
Item 45 Subsections 23YUG(2) and (3)
This item replaces the phrase "a DNA database system" with the phrase "the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system" in order to make it clear that information on the Commonwealth DNA database system, NCIDD and a State/Territory DNA database system may be accessed for forensic comparison purposes, or disclosed for law enforcement purposes, notwithstanding a State/Territory law to the contrary.
Item 46 Subsection 23YUH(1)
This item replaces the phrase "DNA database system" with the phrase "Commonwealth DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 47 Subsection 23YUH(2)
This item replaces the phrase "DNA database system with another DNA profile on that index" with the phrase "State/Territory DNA database system with another DNA profile on that index, or with another DNA profile on the unknown deceased persons index of the Commonwealth DNA database system or NCIDD", in order clarify that a DNA profile on an unknown deceased persons index on a State/Territory database may be matched with DNA profiles on other State/Territory databases, the Commonwealth DNA database system and NCIDD.
Item 48 Subsections 23YUI(1) and (2)
This item replaces the phrase "a DNA database system" with the phrase "the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system" to clarify that information on the Commonwealth DNA database system, NCIDD and any State/Territory DNA database system may be disclosed to the law enforcement agencies set out in section 23YUI of the Crimes Act, including, but not limited to, any law enforcement agency within the meaning of the Australian Crime Commission Act 2002.
Item 49 Paragraphs 23YUJ(a)
This item replaces the phrase "a DNA database system" with the phrase "the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 50 Paragraphs 23YUJ(b)
This item replaces the phrase "a DNA database system" with the phrase "the Commonwealth DNA database system or a State/Territory DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 51 Paragraphs 23YUJ(c)
This item replaces the phrase "a DNA database system" with the phrase "the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system" for the purpose of having this paragraph conform to the phraseology used elsewhere.
Item 52 Transitional
This item allows a reference to the "Commonwealth DNA database system" to be regarded as a reference to the "DNA database system", the previous phraseology, for the purposes of events that occurred before the commencement of these amendments. This clarifies that events relating to the "DNA database system" are subject to the Crimes Act, notwithstanding these amendments.