Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 1 - Forensic procedures

The purpose of Schedule 1 is to implement recommendations from the DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 Review (the DNA Review). These amendments will address deficiencies identified in Part 1D of the Crimes Act 1914 (Cth) (the Crimes Act) and will promote the effectiveness of DNA forensic procedures as a law enforcement tool, whilst increasing civil liberty and privacy safeguards.

The DNA Review examined the collection and use of DNA material for law enforcement purposes under Part 1D of the Crimes Act. Part 1D is primarily based on model provisions developed in 1995 by the then Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. The model provisions have been implemented to varying degrees by all jurisdictions. The Commonwealth implemented the provisions through passage of the Crimes Amendment (Forensic Procedures) Act 2000 (Cth ).

Part 1D of the Crimes Act allows for the collection and use of DNA material by Commonwealth law enforcement agencies for law enforcement purposes and establishes a scheme for the matching and inter-jurisdictional exchange of DNA profiles between Commonwealth, State and Territory law enforcement agencies.

The National Criminal Investigation DNA Database (NCIDD) is established under Part 1D. This database contains a series of numbers that are representative of a DNA profile. These numerical profiles are categorised by index. There are numerous indices on the NCIDD - including for example a 'crime scene index', 'suspect index', 'volunteer index' 'a serious offenders index' 'a unknown deceased persons index' and 'a missing persons index'.

Commonwealth, State and Territory law enforcement agencies provide the DNA profiles that are uploaded onto an index that corresponds to the purposes for which the profile was collected and analysed. Once uploaded, a profile can be matched with other uploaded profiles in accordance with the matching rules that have been agreed to between jurisdictions, which are also outlined in the legislation. These rules create safeguards to prevent, for instance, a DNA profile obtained to identify a body from being matched against DNA profiles found at unrelated crime scenes.

The NCIDD does not contain any personal information that would identify a person to whom a particular DNA profile relates. When a match is made between two profiles on the NCIDD, both the law enforcement agency that uploaded the profile to be matched, and the law enforcement agency that uploaded the profile against which the match was made, are informed. These agencies can then decide whether it is appropriate to exchange and disclose relevant case file information, including information identifying the individual to whom the matched profile relates.

The Minister for Home Affairs and Justice initiated the DNA Review in October 2009 in accordance with section 23YUD of the Crimes Act. The DNA Review was tasked with assessing Part 1D of the Crimes Act and examining issues identified by a 2003 review of Part 1D. ^[1] The Review committee (Review committee) was headed by an independent consultant and included the Australian Privacy Commissioner, Chief Executive Officer of CrimTrac, Coordinator of AFP Criminalistics & Identification Sciences Forensic and Data Centres, Deputy Director from the Office of the Commonwealth Director of Public Prosecutions (CDPP) and a Senior Assistant Ombudsman from the Commonwealth Ombudsman's Office.

The DNA Review conducted extensive consultation with Commonwealth, State and Territory law enforcement agencies, government departments and civil liberty and privacy advocates. Twenty-one written submissions were received by the Review committee. The DNA Review identified the need to amend Part 1D to ensure the ongoing development of a principled and balanced regime for the carrying out of forensic procedures during the investigation of Commonwealth offences and for the use, storage and destruction of material derived from those procedures.

Schedule 1 will implement in full or in part DNA Review recommendations 1(a), 5(a) & (b), 6(a), (b), (c), (e) & (g), 7, 8(a) & (d), 9, 11, 12, 13, 14(a), 16, 17 and 18. ^[2] The amendments will:

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reduce the legislative complexity of the consent, collection and destruction procedures in Part 1D of the Crimes Act

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reduce inconsistency between the Crimes Act and corresponding State and Territory legislation governing the use of forensic procedures for law enforcement purposes

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remove inadequacies in legislative provisions aimed at facilitating the collection and exchange of forensic information with State, Territory and international law enforcement agencies, and

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impose accreditation requirements on laboratories that deal with DNA samples taken under the Crimes Act.

Schedule 1 also corrects minor drafting errors in Part 1D of the Crimes Act.

Part 1 - Amendments commencing on day after Royal Assent

Crimes Act 1914

Item 1 - Subsection 23WA(1)

This item inserts a definition of 'accredited laboratory' into subsection 23WA(1) to mean a forensic laboratory accredited by the National Association of Testing Authorities, Australia (NATA), or of a kind prescribed by regulation.

This definition, along with amendments being made at items 27 and 32 of Schedule 1, will create a legislative safeguard by requiring that where a forensic sample has been taken under Part 1D, the forensic laboratory analysing the sample be accredited either by NATA, or in a laboratory prescribed in accordance with regulations. This requirement will apply to all DNA analysis carried out under Part 1D, whether it be testing for Commonwealth law enforcement agencies or re-testing of a sample on behalf of suspects and offenders.

Item 1 implements recommendation 16 of the DNA Review, which recommended that forensic analysis of genetic standards must occur in laboratories accredited by NATA, or an equivalent body. It is understood this was to address concerns about risks relating to the contamination of samples during testing processes. A similar recommendation was made by a previous Commonwealth review of DNA forensic procedures and by the Australian Law Reform Commission/Australian Health Ethics Commission. ^[3]

The DNA Review identified NATA as a longstanding laboratory accreditation body, which is externally audited and operates consistently with international practice. NATA already accredits laboratories in all Australian jurisdictions. The ability to prescribe alternative accreditation bodies will address the situation where testing in laboratories accredited by another body should be appropriately facilitated. For example, where the testing occurs in a laboratory with an equivalent foreign accreditation.

Item 2 - Subsection 23WA(1) (definition of Commissioner)

Subsection 23WA(1) currently provides that for the purposes of Part 1D 'Commissioner' means Commissioner of the AFP and includes a constable or staff member to whom the Commissioner has delegated the functions and powers conferred or imposed on the Commissioner under the Act. Section 23YQ provides that the Commissioner may delegate all or part of his or her functions under Part 1D to a constable or staff member. Subsection 23YQ(2) provides that 'staff member' has the same meaning as it has in the Australian Federal Police Act 1979 (the AFP Act). The reference to 'staff member' in the AFP Act was repealed by the Australian Federal Police Legislation Amendment Act 2000 .

Item 2 omits the term 'staff member' and inserts a replacement term, 'AFP appointee (within the meaning of the Australian Federal Police Act 1979 )'. Item 69 of Schedule 1 provides that the term 'AFP appointee' has the same meaning as in the AFP Act where it means:

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a Deputy Commissioner

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an AFP employee

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a special member, a special protective service officer

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a person engaged overseas under section 69A of the AFP Act to perform duties overseas as an employee of the Australian Federal Police; or

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a person who is determined by the Commissioner under the Act to be an AFP appointee, or is performing certain functions for the AFP under section 69D of the AFP Act.

The consequential change made by item 2 to replace the term 'staff member' is necessary to ensure that the AFP Commissioner can continue to make valid delegations under section 23YQ. The replacement term 'AFP appointee' ensures an appropriate class of AFP personnel are able to exercise functions and powers under Part 1D.

Item 3 - Subsection 23WA(1) (definition of informed consent)

Item 3 corrects a drafting error in the definition of 'informed consent' contained in subsection 23WA(1). The definition currently refers only to section 23WF. Item 3 will ensure that the definition of 'informed consent' includes a reference to all relevant informed consent provisions under Part 1D, that is, 'sections 23WF, 23WG, 23XWG and 23XWR'.

Item 4 - Subsection 23WA(1) (paragraph (b) of the definition of intimate forensic procedure)

Item 4 updates the definition of 'intimate forensic procedure' to mean the taking of a sample of blood by methods other than by a finger prick. This item is required as a result of the changes proposed in item 6, Schedule 1, which re-classify the method of taking a sample of blood via a prick to the finger as a non-intimate forensic procedure.

Under Part 1D, methods used to collect forensic samples are classified as either 'intimate forensic procedures' or 'non-intimate forensic procedures'. This classification determines who can authorise the procedure, the circumstances in which the procedure can take place, and the safeguards that apply when the sample is taken.

The definition of intimate forensic procedure in subsection 23WA(1) currently includes all methods of taking samples of blood, among other procedures. Removing the taking of blood samples via a finger prick from the definition of intimate forensic procedure changes the circumstances under which that procedure can be authorised. Currently under sections 23WR and 23XWD, the collection of a blood sample, including via finger prick, cannot occur unless a suspect or offender has consented to the procedure, or a magistrate or judge has ordered the procedure to be conducted.

Item 4 will amend subsection 23WA(1) with the effect that a senior constable will also be able to order the procedure to be conducted. When making such an order the senior constable will be required to consider the matters set out at section 23WO including;

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whether there is a less intrusive but reasonably practicable way of obtaining evidence to confirm or disprove the suspect committed the relevant offence

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the seriousness of the circumstances surrounding the commission of the relevant offence, and

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whether carrying out the forensic procedure is justified in all the circumstances.

Items 4 and 6 of Schedule 1 implement recommendation 18 of the DNA Review which recommended that finger prick samples be included in the definition of 'non intimate forensic procedure'. The DNA Review concluded that a finger prick is a minor matter that can be routinely and easily administered, and as such, recommended that this method be included in the definition of 'non-intimate forensic procedure'. Gathering a forensic sample of blood via a finger prick is not considered painful and does not require the person conducting the procedure to have specialised expertise. The DNA Review considered that other methods of collecting a sample of blood remain properly classified as intimate forensic procedures.

Item 5 - Subsection 23WA(1) (paragraph (c) of the definition of intimate forensic procedure)

Item 5 omits the taking of a sample of saliva, or a sample by buccal swab from the definition of 'intimate forensic procedure' in subsection 23WA(1). Item 6 of Schedule 1 inserts them into the definition of 'non-intimate forensic procedure'.

Items 5 and 6 combined implement recommendation 11 of the DNA Review with some modification. Recommendation 11 suggested that the taking of a sample by buccal swab, where self-administered or administered at the request of the person providing the sample, should be reclassified as non-intimate forensic procedures. The DNA Review noted that collection of a forensic sample via a self-administered buccal swab is the most common means of collecting a forensic sample. The DNA Review also noted that the use of a buccal swab was a relatively non-invasive sampling method and the Commonwealth's approach of classifying the taking of a sample by buccal swab was different to the approach taken in legislation in most States and Territories where equivalent provisions classified this method as a non-intimate forensic procedure.

Following consultation with Commonwealth law enforcement agencies, it was considered appropriate to reclassify the collection of all samples of saliva as well as samples taken by buccal swab, whether self administered or administered by certain other persons, as non-intimate forensic procedures. This reclassification is considered appropriate on grounds that:

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it would be impossible to obtain a DNA sample by buccal swab without incidentally collecting a sample of saliva

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the process of collecting a sample of saliva is rarely utilised, relatively painless and non-invasive, and

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the method of collecting a sample via buccal swab or of saliva requires less technical expertise and may be less painful than other forensic procedures such as the collection of hair samples that are currently classified as non-intimate methods.

Reclassifying the taking of a sample of saliva or by buccal swab as a non-intimate forensic procedure changes the circumstances in which these procedures can be performed. Currently under sections 23WR and 23XWD, the procedures can only occur where a suspect or offender has consented to the procedure, or where a judge or magistrate has ordered the procedure to be conducted.

The amendments being made by item 5 will also allow a senior constable to order the procedure to be conducted. When making such an order the senior constable will be required to consider a series of matters set out at section 23WO including;

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whether there is a less intrusive but reasonably practicable way of obtaining evidence to confirm or disprove the suspect committed the relevant offence

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the seriousness of the circumstances surrounding the commission of the relevant offence, and

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whether carrying out the forensic procedure is justified in all the circumstances.

The revised definition would align the Commonwealth categorisation of the taking of a sample by buccal swab with the approach taken in Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory. In these jurisdictions, the taking of a sample by buccal swab is given a 'non-intimate' classification and can be performed in most circumstances without seeking a court order.

Item 6 - Subsection 23WA(1) (after paragraph (a) of the definition of non-intimate forensic procedure)

Item 6 inserts into the definition of 'non-intimate forensic procedure' contained in subsection 23WA(1), the 'taking of a sample of blood by a finger prick' and the 'taking of a sample of saliva, or a sample by buccal swab'.

Item 6 implements recommendations 11 and 18 of the DNA Review. As recognised in the DNA Review, the taking of a sample by buccal swab and the taking of a sample of blood by a finger prick are relatively less invasive than other intimate forensic procedures, and unlike other intimate forensic procedures, can be performed by non-medical specialists without specific technical expertise. The taking of a sample of saliva is of a substantially similar nature to the process required to take a sample by buccal swab and it would be impossible not to collect some saliva when taking a sample by buccal swab.

Currently under sections 23WR and 23XWD, the collection of a blood sample via finger prick, a sample by buccal swab and a sample of saliva cannot occur unless a suspect or offender has consented to the procedure, or a magistrate or judge has ordered the procedure to be conducted. As a consequence, where individuals do not consent to these methods, the options available under the legislation to law enforcement authorities for the collection of a DNA sample are to use a non-intimate forensic procedure which can be authorised by a senior constable, or to seek an order from a judge or magistrate. The most suitable non-intimate method enabling the extraction of DNA that can currently be authorised by a senior constable is the collection of a hair sample. This is a process which requires greater technical expertise and may be more painful than the collection of a sample of blood via a finger prick, or a sample of saliva or via buccal swab. Item 6 will overcome this difficulty and provide additional and less invasive collection options to a senior constable when authorising a non-intimate forensic procedure to be carried out.

Item 7 - Subsection 23WA(1) (definition of senior constable)

Part 1D provides authority to 'senior constables' to authorise or carry out procedures to collect forensic samples. 'Senior constable' is defined by subsection 23WA(1) to mean 'a constable of the rank of sergeant or higher'. Item 7 repeals the term 'senior constable' and item 8, Schedule 1 inserts a replacement term, 'senior police officer'.

The term senior constable does not appear in the AFP Act, and is not utilised by the AFP except in the context of Australian Capital Territory Policing, where it has a different meaning to 'constable of the rank of sergeant or higher'. Item 7 implements recommendation 6(a) of the DNA Review to ensure that the terminology contained in Part 1D reflects the terminology used by the AFP under other Commonwealth legislation and in practice.

Item 8 - Section 23WA(1)

Item 8 inserts into subsection 23WA(1) the new definition of 'senior police officer' to mean a reference to 'a constable of the rank of sergeant or higher'. This definition replaces the term 'senior constable', which is removed by item 7 above.

This is a technical amendment to ensure terminology contained in Part 1D reflects the terminology used by the AFP. It does not widen the class of persons qualified to exercise the authority currently exercised by senior constables under Part 1D. Consequential amendments are made by items 9, 10, 12-20 to replace references to 'senior constable' in Part 1D with references to 'senior police officer'.

Item 9 - Section 23WC (table item 2)

Section 23WC sets out a table that summarises the circumstances in which a forensic procedure may be carried out on a suspect and shows the provisions of Part 1D that authorise the carrying out of those procedures. Table item 2 includes a reference to a 'senior constable' authorising a non-intimate forensic procedure on an adult suspect who is in custody.

Consequential to the amendments made by items 7 and 8, item 9 substitutes a reference to 'senior constable' with a reference to 'senior police officer' in table item 2 of section 23WC. This amendment does not change the class of persons qualified to authorise a non-intimate forensic procedure on an adult suspect who is in custody.

Item 10 - Paragraph 23WG(3)(c)

Paragraph 23WG(3)(c) sets out how informed consent to a forensic procedure is to be sought from a suspect who is an Aboriginal person or Torres Strait Islander. Under current paragraph 23WG(3)(c), a constable must not ask the suspect to consent to the forensic procedure unless the constable making the request is a senior constable, and he or she believes on reasonable grounds that, having regard to the suspect's level of education and understanding, the suspect is not at a disadvantage in relation to the request to consent by comparison with members of the Australian community generally.

Consequential to the amendments made by items 7 and 8, this item substitutes a reference to 'senior constable' with a reference to 'senior police officer'. This amendment does not change the class of person qualified to seek informed consent from a suspect who is an Aboriginal person or Torres Strait Islander.

Item 11 - Paragraph 23WJ(3)(a)

Subsection 23WJ(3) sets out information that must be given to a suspect who is in custody, where that suspect has refused to consent to a non-intimate forensic procedure. Paragraph 23WJ(3)(a) requires the suspect to be informed that, if the suspect does not consent, a constable may order the carrying out of the procedure in certain circumstances.

Item 11 replaces the reference to a 'constable' ordering the carrying out of the procedure, with a reference to a 'senior police officer' ordering the carrying out of the procedure to resolve a drafting error.

Under Part 1D it was not intended to allow constables to be able to order the carrying out of a forensic procedure on a suspect in custody. This is reflected in section 23WM, which provides that only a senior police constable can order a non-intimate forensic procedure be carried out on a suspect. The replacement of the reference to 'constable' with a reference to 'senior police officer' will ensure that the information given to a suspect accurately reflects who can order a non-intimate forensic procedure on a suspect in custody, where that suspect has refused consent to the forensic procedure.

Item 12 - Division 4 of Part 1D (heading)

The heading of Division 4 specifies that Division 4 relates to the carrying out of non-intimate forensic procedures on suspects by order of a senior constable. Consequential to the amendments made by items 7 and 8 of Schedule 1, item 12 replaces a reference to 'senior constable' in the heading of Division 4 with a reference to 'senior police officer'. The replacement of the term senior constable does not change the class of person qualified to authorise a non-intimate forensic procedure on a suspect who is in custody but reflects the change in terminology made by item 8 of Schedule 1.

Item 13 - Section 23WM (heading)

The heading of section 23WM specifies that section 23WM relates to the carrying out of non-intimate forensic procedures on suspects by order of a senior constable. Consequential to the amendments made by items 7 and 8 of Schedule 1, item 13 replaces a reference to 'senior constable' with a reference to 'senior police officer'. The replacement of the term senior constable does not change the class of person qualified to authorise a non-intimate forensic procedure on a suspect who is in custody but reflects the change in terminology made by item 8 of Schedule 1.

Item 14 - Subsection 23WM(1)

Subsection 23WM(1) provides that a person is authorised to carry out a non-intimate forensic procedure by order of a senior constable under section 23WN. Consequential to the amendments made by items 7 and 8 of Schedule 1, item 14 replaces the reference to 'senior constable' in subsection 23WM(1) with a reference to 'senior police officer'. The replacement of the term senior constable does not change the class of person qualified to authorise a non-intimate forensic procedure on a suspect who is in custody, but reflects the change in terminology made by item 8 of Schedule 1.

Item 15 - Section 23WN (heading)

Section 23WN specifies the circumstances in which a senior constable may order a non-intimate forensic procedure. The heading of the section contains a reference to 'senior constable'. Consequential to amendments made by items 7 and 8, this item replaces a reference to 'senior constable' with a reference to 'senior police officer' in this heading. The replacement of the term senior constable does not change the class of person qualified to authorise a non-intimate forensic procedure on a suspect who is in custody, but reflects the change in terminology made by item 8 of Schedule 1.

Item 16 - Section 23WN

Section 23WN sets out the circumstances in which a senior constable may order the carrying out of a non-intimate forensic procedure on a suspect who is in custody. Consequential to the amendments made by items 7 and 8, this item replaces references to 'senior constable' in subsection 23WN with references to 'senior police officer'. The replacement of the term of senior constable in this section does not change the class of person qualified to authorise a non-intimate forensic procedure on a suspect who is in custody, but reflects the change in terminology made by item 8 of Schedule 1.

Item 17 - Section 23WO (heading)

Section 23WO relates to the matters that a senior constable must consider when ordering a forensic procedure. The heading contains a reference to 'senior constable'. Consequential to amendments made by items 7 and 8, this item replaces a reference to 'senior constable' in this heading with a reference to senior police officer. The replacement of the term senior constable does not change the class of person who must be satisfied of the matters set out in section 23WO prior to ordering a forensic procedure, but reflects the change in terminology made by item 8 of Schedule 1.

Item 18 - Section 23WO

Subsection 23WO sets out the matters that need to be considered by a senior constable before ordering a forensic procedure on a suspect. Consequential to the amendments made by items 7 and 8, this item replaces references to 'senior constable' in subsection 23WO with references to 'senior police officer'. The replacement of the use of senior constable in this section does not change the class of person required to consider the matters set out in subsection 23WO before ordering a forensic procedure on a suspect, but reflects the change in terminology made by item 8 of Schedule 1.

Item 19 - Section 23WP (heading)

The heading set out at section 23WP specifies that section 23WP relates to how a senior constable must record an order to carry out a forensic procedure. Consequential to amendments made by items 7 and 8, this item replaces a reference to 'senior constable' with a reference to 'senior police officer' in this heading. The replacement of the term senior constable does not change the class of person to make and record an order in accordance with section 23WP, but reflects the change in terminology made by item 8 of Schedule 1.

Item 20 - Subsections 23WP(1) and (2)

Subsections 23WP(1) and (2) require a senior constable to make a record of an order made under section 23WN for the carrying out of a forensic procedure on a suspect. Consequential to the amendments made by items 7 and 8, this item replaces references to 'senior constable' in subsections 23WP(1) and (2) with references to 'senior police officer'. This amendment does not change the class of person who must conform to the requirements set out in subsections 23WP(1) and (2), when giving an order for the carrying out of a forensic procedure.

Item 21 - Paragraphs 23WR(a) and (b)

Section 23WR sets out the circumstances in which a magistrate may order a forensic procedure on a suspect. Paragraph 23WR(a) provides that such an order can be made when the suspect is not in custody and has not consented to the forensic procedure. Paragraph 23WR(b) provides that an order can be made when the suspect is in custody and has not consented to the forensic procedure. Both paragraphs, therefore, make reference to such orders being made where a suspect has 'not consented' to a procedure.

A similar provision to 23WR exists within Part 1D in relation to offenders (section 23XWO). Recommendation 6(c) of the DNA Review proposed a technical amendment to this provision to make it clear that consent is not necessary prior to an order being sought under that section in relation to offenders . In relation to section 23XWO, the DNA Review noted the CDPP's suggestion that it would be preferable if the legislation could be amended to make it clear that consent is not necessary prior to an order being sought under section 23XWO. The DNA Review accepted this proposal stating it would simplify and clarify current procedural requirements.

Item 21 makes a change similar to that suggested by Recommendation 6(c) of the DNA Review to provisions dealing with suspects , to ensure consistency in the Act. Item 21 inserts the phrase '(whether or not consent has been sought)' into both paragraphs 23WR(a) and (b) to make it clear that a magistrate need not consider whether a request for consent from the suspect has been sought prior to an applicant seeking an order from the court for that procedure to be carried out. Item 41 makes similar amendments to section 23XWNA in relation to judges or magistrates' orders being sought to carry out forensic procedures on offenders.

Item 22 - Paragraph 23XL(b)

Paragraph 23XL(b) currently requires hair samples for DNA testing to be taken one hair at a time. Item 22 repeals this requirement and provides that where a sample of hair is being taken from a suspect, the sample is to be extracted based on the least painful mechanism known and available to the person authorised to take the sample. This item implements recommendation 12 of the DNA Review.

The DNA Review, when considering the method of taking hair samples noted that the 'single hair' extraction process may be slower and create more discomfort than the alternative process of extracting multiple hairs on a single occasion. Recommendation 12 of the DNA Review reflects this consideration and provides that an amendment to paragraph 23XL(b) would be a marked improvement. ^[4]

Item 23 - Section 23XM (table item 2)

Section 23XM sets out in a table who may carry out different types of intimate and non-intimate forensic procedures under Part 1D, and in some cases, creates an entitlement for a suspect to request the presence of a medical practitioner or dentist when the procedures are carried out. Items 1 to 8 of the table in section 23XM set out the process for carrying out intimate forensic procedures and items 9 to 15 set out the process for carrying out non-intimate forensic procedures.

Table item 2 sets out who may carry out the taking of a sample of blood and provides that a suspect is entitled to request that a medical practitioner be present when the sample is taken. Currently, any method of taking a sample of blood under Part 1D is an intimate forensic procedure and the persons able to carry out this procedure are restricted to medical practitioners, nurses and other appropriately qualified persons.

Item 6 of Schedule 1 re-classifies the taking of a sample of blood via a prick to the finger from an intimate to a non-intimate forensic procedure. Item 4 of Schedule 1 amends the definition of 'intimate forensic procedure' to mean the taking of a sample of blood by any other method as an intimate forensic procedure, to take account of this change. Consequential to those amendments, item 23 amends table item 2 of section 23XM to ensure that the intimate forensic procedure of taking a sample of blood does not include the taking of a sample of blood via a prick to the finger.

This will permit blood samples by finger prick to be taken by a medical practitioner, nurse, constable or appropriately qualified person. It will also ensure that when taking a sample of blood other than by finger prick, the suspect remains entitled to request a medical practitioner be present and that the procedure only be carried out by a medical practitioner, nurse or another appropriately qualified person.

Item 24 - Section 23XM (table item 3)

Section 23XM sets out in a table who may carry out different types of intimate and non-intimate forensic procedures under Part 1D. Table item 3 sets out who may carry out the taking of a sample of saliva, or a sample by buccal swab and provides that a suspect is entitled to request that a medical practitioner be present when the sample is taken. Currently, the taking of a sample of saliva, or a sample by buccal swab is classified as an intimate forensic procedure and the persons able to carry out this procedure are restricted to medical practitioners, dentists, dental technicians, nurses and appropriately qualified persons.

Items 4 and 5 of Schedule 1 combined, reclassify the taking of a sample of saliva and a sample by buccal swab as non-intimate forensic procedures. Consequential to those amendments, item 24 amends the table in section 23XM by repealing table item 3. A new table item will be inserted by item 25 of Schedule 1 to re-insert details on who may carry out these forensic procedures.

Item 25 - Section 23XM (after table item 9)

Section 23XM sets out in a table who may carry out different types of intimate and non-intimate forensic procedures under Part 1D, , and in some cases, creates an entitlement for a suspect to request the presence of a medical practitioner or dentist when the procedures are carried out.

Item 25 inserts a new table item 9A relating to the taking of a sample of blood by a finger prick and provides that this procedure can be carried out by a medical practitioner, nurse, constable or appropriately qualified person.

Item 25 also inserts new table item 9B to provide that the taking of a sample of saliva or the taking of a sample by buccal swab can be carried out by medical practitioners, dentists, dental technicians, nurses, constables and other appropriately qualified persons.

These table items expand the classes of persons currently able to undertake the collection of these DNA forensic samples to include constables, based on the reclassification of these procedures as non-intimate forensic procedures pursuant to items 4, 5 and 6 of Schedule 1. This expansion was considered appropriate based on the conclusions of the DNA Review and the submissions of law enforcement agencies that no specialist medical expertise is necessary to perform the relevant procedures and to ensure that these procedures are aligned with other non-intimate forensic procedures.

Item 26 - Subsection 23XN(1)

Subsection 23XN(1) currently provides that an intimate forensic procedure other than the taking of a sample of blood, a sample of saliva, a buccal swab or a dental impression, is to be carried out, where practicable, by a person of the same sex as the suspect.

Item 26 amends subsection 23XN(1) to remove a reference to the taking of a sample of saliva, and sample by buccal swab, as intimate forensic procedures. This is to ensure consistency with amendments made by items 5 and 6 of Schedule 1, which re-classify these sampling methods as non-intimate forensic procedures. This is a technical amendment and does not change the current processes applicable to intimate forensic procedures under subsection 23XN(1).

Item 27 - Section 23XU

Section 23XU currently sets out a scheme for sharing part of a DNA sample with the suspect from whom it was taken in circumstances where there is sufficient material to share. It provides that, where a sample is taken from a suspect under Part 1D and there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect, an investigating constable must ensure that part of the sample is provided to the suspect as soon as practicable.

Recommendations 13(a) and 14 of the DNA Review suggested modifications to the existing scheme to share samples, or parts of samples, with suspects established by this section. The recommendations propose that a right be conferred on the person who provided the sample to have part of any matching crime scene sample provided to an accredited laboratory at their request, and that copies of related test analysis and results related to these matched samples be provided to convicted persons. Consultation with law enforcement agencies also highlighted some concerns about the uncertainty in section 23XU regarding timeframes for providing samples to suspects and around the contamination and security risks that result from the provision of a sample directly to a suspect.

Item 27 repeals section 23XU and inserts a new provision which takes account of the DNA Review and issues raised by law enforcement agencies in relation to the current sharing arrangements.

New section 23XU provides that where a sample is taken from a suspect under Part 1D, the suspect can request that the AFP provide material from the sample to an accredited laboratory, nominated by the suspect, for the purposes of re-testing (new subsections 23XU(1) and (2) refer). An investigating constable will then be required to provide the nominated laboratory with part of the material taken from the suspect within 28 days (new paragraph 23XU(3)(a)).

This item retains an existing safeguard in section 23XU that requires the constable to ensure reasonable care is taken to preserve this sample until it is provided to the nominated laboratory (new paragraph 23XU(3)(b)). New subsection 23XU(4) also makes it clear that that suspects will bear the costs in relation to any analysis of that part of the material provided to the laboratory.

The provision of the sample directly to an accredited laboratory will ensure the integrity of the sample is maintained whilst still allowing the suspect an avenue to test the evidence against them. The four week timeframe for provision of material from samples will ensure that they are still provided to suspects within a reasonable time without creating an undue administrative burden on forensic laboratories, and is supported by the DNA Review (Recommendation 13(a)).

Items 28, 29, 31 and 32 of Schedule 1 create a scheme through which a suspect will have access to their personal information other than material from their sample in circumstances where there is insufficient sample material to share.

Item 28 - Subsection 23XUA(2)

Section 23XUA provides a suspect with the right to request that a representative of his or her choice be present during testing of a sample taken from them where there is insufficient material to be shared with accredited laboratories nominated by them under proposed new section 23XU (proposed in item 17 of Schedule 1), and where the material is being analysed in the investigation of an offence.

In its submission to the DNA Review, the AFP noted that the presence of an independent person during forensic analysis in a laboratory, as currently provided for under section 23XUA, has implications for the contamination and security of samples and could undermine the accreditation process for testing laboratories as they are required to impose controls on who can access testing premises.

The DNA Review considered these concerns. Recommendation 13(b) of the DNA Review recommended that subsection 23XUA(2) be amended to require that a person who is present in the laboratory pursuant to a request by a suspect must comply with all instructions relating to the analysis of a sample with a sanction of removal for non-compliance. Items 28, 29, 31 and 32 of Schedule 1 implement that recommendation by modifying the conditions under which a person nominated by the suspect (the 'attendee') can attend and be present during the testing of a suspect's sample. These amendments aim to ensure that persons present during testing comply with instructions aimed at preventing the loss, obstruction or contamination of testing and samples.

Item 28 amends subsection 23XUA(2) to provide that a suspect can make a request to an investigating constable that a person of their choice be present when the material is analysed in the investigation of the offence.

Item 28 also amends subsection 23XUA(2) to insert the term 'attendee' to mean a person of the suspect's choosing to be present when a sample is being analysed in the investigation of an offence. Use of the term 'attendee' aims to simplify the language used in the provisions relating to the sharing of samples and does not affect who the suspect can nominate to attend the laboratory during the analysis of the forensic material.

Item 29 - After subsection 23XUA(2)

Item 29 inserts a new subsection into section 23XUA relating to the suspect's entitlement to request that a representative be present during the testing of a sample taken from that suspect under Part 1D.

Subsection 23XUA currently provides that a suspect is able to request the presence of a person of his or her choice during testing of his or her sample. Item 28 of Schedule 1 clarifies that this request must be made to the investigating constable.

Amendments made by item 29 will require the investigating constable to inform the suspect that the attendee may be directed by the forensic analyst to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material. This new requirement will give analysts the ability to give instructions in relation to the analysing of material and ensure that the suspect is fully informed of their attendee's obligations to obey instructions when attending the laboratory during the analysis of the material.

Item 29 also inserts a reference to an 'analyst', meaning a person responsible for analysing the material. Currently section 23XUA refers to 'the persons responsible for analysing the material'. The insertion of the shorter term 'analyst' does not change the type of person currently responsible for analysing material under the Crimes Act. The new term is inserted to achieve greater clarity and simplify the language used in new provisions relating to analysing material.

These amendments accord with a modification of Recommendation 13(b) of the DNA Review, which suggested that subsection 23XUA(2) be amended to require a person who is present in a laboratory pursuant to a request by a suspect must comply with all instructions relating to the analysis of the sample with a sanction of removal for non-compliance. The amendments also address AFP concerns about the contamination and security risks created by the presence of an independent person in a laboratory in which forensic analysis is taking place. Item 32 of Schedule 1 sets out how such instructions are to be given to the attendee and other conditions relating to the attendee's presence in the laboratory. These conditions include a penalty for non-compliance with certain directions given by an analyst.

Item 30 - Subsection 23XUA(3)

Item 30 amends subsection 23XUA(3) to replace a reference to 'the person chosen' with a reference to 'subject to this section, the attendee'. This amendment is made for clarity and for consistency with the language of item 28 of Schedule 1, which renames the person chosen to attend a forensic laboratory at the request of a suspect during the forensic analysis of material from the suspect's sample as the 'attendee'.

Use of the term 'attendee' does not affect who the suspect can nominate to attend the laboratory during the analysis of the forensic material.

Item 31 - Subsection 23XUA(3)

Item 31 amends subsection 23XUA(3) to replace a reference to 'a person responsible for analysing the material' with a reference to an 'analyst'. The insertion of this term is a minor amendment to align this provision with new provisions in section 23XUA inserted by item 29, which define 'analyst' as the person responsible for analysing the material.

Use of the term 'analyst' does not affect who the suspect can nominate to attend the laboratory during the analysis of the forensic material.

Item 32 - At the end of section 23XUA

Item 32 amends the scheme under which a suspect has the right to request that a representative ('the attendee') be present during the analysis of a sample taken from that suspect under Part 1D.

Section 23XUA currently provides that where material has been taken from a suspect under Part 1D for the investigation of an offence, that suspect is entitled to request the presence of a person of his or her choice during testing of a sample taken from them where there is insufficient material to be shared with an accredited laboratory nominated by them under proposed new section 23XU (item 27, Schedule 1 relates) and where the material is being analysed in the investigation of an offence. Subsection 23XUA(1) provides that such a request can only be made where there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect, and where the analysis does not need to occur immediately.

Amendments made by items 28, 29 and 32 of Schedule 1 modify this entitlement. Item 28 clarifies that this request must be made to the investigating constable and defines the person chosen to attend the testing of the sample as the 'attendee'. Item 29 inserts a reference to the person who is responsible for analysing the material as the 'analyst', and creates a requirement on the investigating constable to inform the suspect that the attendee may be directed by the analyst to leave the premises at which analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.

Item 32 inserts provisions to give effect to the scheme for an analyst to provide instructions and a direction to leave the premises to an attendee. These amendments provide that:

•

the analyst may give instructions to the attendee in relation to the analysis of the material (new subsection 23XUA(4))

•

the analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with an instruction (new subsection 23XUA(5)), and

•

when the analyst gives a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence (new subsection 23XUA(6)).

New subsection 23XUA(7) contains an offence provision and carries a penalty of 30 penalty units. Proposed new subsection 23XUA(8) explains that the offence in subsection 23XUA(7) is an offence of strict liability.

The creation of conditions on an attendee's access to a laboratory implements recommendations 13 and 14 of the DNA Review. The DNA Review concluded that maintaining the opportunity for a suspect's representative to observe testing in situations where there was insufficient material to be shared with that suspect, was important to maintain confidence in the DNA testing system. However, the DNA Review also acknowledged the validity of concerns expressed by law enforcement agencies that the provision of unfettered access of unvetted individuals to forensic DNA testing facilities created real security and contamination risks, and could undermine the accreditation of such facilities. Law enforcement agencies expressed specific concerns about the absence of any conditions in section 23XUA on the attendee's access to the laboratories and the potential for such an attendee to accidently or deliberately interfere with testing processes that were being undertaken in the attendee's presence.

Item 32 maintains a suspect's ability to have a representative present when their sample is being tested whilst addressing law enforcement's concerns regarding contamination and security. The offence for non-compliance with an analyst's direction will apply only where access has been granted to the attendee in accordance with section 23XUA and where instructions given to the attendee in relation to the analysis of the material have not been complied with. Prior to giving a direction, the analyst must provide instructions to the attendee. There is no penalty for non-compliance with these instructions. However, non-compliance may result in the analyst giving a direction that the attendee leave the premises.

There are legitimate grounds for penalising the attendee without requiring proof of fault in relation to this offence. Once forensic samples have been tampered with or contaminated, there is a real possibility the sample will not be able to be used in the investigation of the specific offence or in future prosecutions. This would undermine steps being taken to improve confidence in the DNA testing system and promote mechanisms for suspects or convicted persons to test their innocence.

Item 32 includes additional safeguards to ensure that the attendee is fully aware of the consequences of non-compliance with a direction to leave the premises:

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a direction can only be issued where the attendee has already failed to comply with an instruction given by the analyst in relation to the analysis of the material

•

when giving a direction under section 23XUA, the analyst is required to inform the attendee that a failure to comply with a direction is an offence. This requirement aims to place the attendee on guard against the possibility of any contravention of the offence, by giving clear notice of the effect of non-compliance, and

the investigating constable is to inform the suspect that if a nominated attendee is to be provided with access to the premises, that right of access may be removed if the attendee does not comply with instructions given by the analyst.

Item 33 - Section 23XW

The DNA Review noted the view amongst stakeholders that individuals should have access to information held about them in agency records and should be given the opportunity to correct information that is inaccurate, or out of date. In recommendations 13 and 14, the DNA Review suggested that access be provided to relevant person samples and crime scene samples (and copies of related test analysis and results) by convicted persons who wished to establish their innocence.

Section 23XW currently provides access to suspects to results of any analysis made of DNA samples taken from them. Item 33 proposes that this provision be enhanced in light of recommendations 13 and 14 to enable suspects to be informed of a match between their profile and one contained on a crime scene index, where the suspect's profile has been matched as part of the investigation of the offence.

This item also provides clarity in relation to the timeframes for providing the results of the analysis to the suspect. Currently, results of analysis of a sample taken from a suspect must be made available to the suspect within seven days after the material comes into existence, or within seven days of a request made by the suspect (current section 23YG relates). This process for providing copies is confusing and problematic for law enforcement as the analysis of the material may take place more than seven days after the sample has been taken from the suspect.

Item 33 seeks to address these concerns and replaces the current section 23XW. Pursuant to proposed section 23XW an investigating constable must provide copies of analysis within 14 days of a request from a suspect, provided that it has been 14 days since the analysis of the material was undertaken. There is no obligation imposed on the investigating constable to make this material available in the absence of a request from a suspect. This accords with the view of the DNA Review, which stated that access to samples (and related records) should be granted upon application. ^[5]

The insertion of these requirements ensures a suspect has timely and appropriate access to documents. It also clarifies the process for providing that access for law enforcement.

Item 34 - Subsection 23XWB(1)

Division 6A of Part 1D provides for the carrying out of certain forensic procedures after the conviction of serious and prescribed offenders. Section 23XWB currently classifies certain procedures as intimate or non-intimate forensic procedures in relation to these offenders. The classification of these procedures is identical to the classification of these procedures under Division 6, which provides for the carrying out of forensic procedures on suspects. Under both Division 6 and Division 6A the authorisation requirements and safeguards that apply to the method of forensic procedure are dependent on whether the relevant method is listed as an intimate or non-intimate forensic procedure.

Items 4, 5 and 6 of Schedule 1 reclassify certain methods of collecting material from suspects from intimate to non-intimate forensic procedures. These amendments were made to ensure that the authorisation requirements and safeguards that applied to taking a forensic sample by a particular method, took better account of the relative invasiveness and skills that have to be applied when taking a sample by each particular method. Items 34 and 35 of Schedule 1 make an equivalent change in relation to certain methods of collecting forensic material from offenders.

Item 34 amends subsection 23XWB(1) to clarify that the taking of a sample of blood (other than by a finger prick) is an intimate forensic procedure in relation to offenders.

Item 35 - At the end of 23XWB(2)

Subsection 23XWB(2) currently lists the non-intimate forensic procedures to which Division 6A applies. Item 35 amends subsection 23XWB(2) so that the taking of a sample of saliva and the taking of a sample by buccal swab are listed as non-intimate forensic procedures. These procedures are currently classified as intimate forensic procedures. The classification of these procedures is identical to the classification of these procedures under Division 6, which provides for the carrying out of forensic procedures on suspects. Under both Division 6 and Division 6A the authorisation requirements and safeguards that apply to the method of forensic procedure are dependent on whether the relevant method is listed as an intimate or non-intimate forensic procedure.

Items 4, 5 and 6 of Schedule 1 reclassify certain methods of collecting material from suspects from intimate to non-intimate forensic procedures. These amendments were made to ensure that the authorisation requirements and safeguards that applied to taking a forensic sample by a particular method, took better account of the relative invasiveness and skills that had to be applied when taking a sample by each particular method. Items 34 and 35 make an equivalent change in relation to certain methods of collecting material from offenders.

Item 35 amends subsection 23XWB(2) to provide that the taking of a sample of saliva, a sample by buccal swab and the taking of a sample of blood by a finger prick are non-intimate forensic procedures.

Item 36 - At the end of subsection 23XWC(1)

Section 23XWC sets out the circumstances in which a non-intimate forensic procedure can be carried out on an offender under Division 6A. Under subsection 23XWC(1), a person is authorised to carry out a non-intimate forensic procedure on a person (other than a child or an incapable person) with the informed consent of the serious offender or by order of a constable under section 23XWK.

Item 36 amends subsection 23XWC(1) by adding an additional paragraph to provide that a non-intimate forensic procedure can also be authorised by a judge or magistrate under section 23XWO.

Subsection 23XWO(1) currently provides that an authorised applicant may apply to a judge or a magistrate for an order directing a serious offender to consent to an intimate forensic procedure only. Amendments made by item 42 of Schedule 1 will provide that an order may be sought for the carrying out of either an intimate or a non-intimate forensic procedure.

Providing that an order may be sought from a judge or magistrate to carry out either non-intimate or intimate forensic procedures allows a wider variety of collection methods to be considered when an application is made for an order to take a DNA sample from an offender. Currently section 23XWO only allows such orders to be sought in relation to more serious and more invasive 'intimate' collection methods. For example, the removal of samples from the genital area of an offender. The amendments made by items 34 and 35 of Schedule 1 to reclassify less invasive intimate forensic procedures as non-intimate forensic procedures would further restrict the possible ways that a forensic sample could be collected from an offender when authorised by a judge or magistrate.

Item 36 resolves this issue by providing that orders to conduct forensic procedures may also be sought for forensic procedures that are less invasive, such as the taking of a sample by buccal swab, and the taking of a sample of hair.

Item 37 - Subsection 23XWC(3)

Section 23XWC sets out the circumstances in which a non-intimate forensic procedure can be carried out on an offender under Division 6A. Under subsection 23XWC(3), a person is authorised to carry out a non-intimate forensic procedure on a child or incapable person who is a serious offender, or take the fingerprints of a child or incapable person who is a prescribed offender, by order of a magistrate under section 23XWO. Section 23XWO, dealing with orders directing an offender to consent to a forensic procedure, however, refers to a judge or a magistrate making such an order.

Item 37 inserts a reference into subsection 23XWC(3) to a judge also being able to make the order under section 23XWO. This is a minor amendment to correct a drafting error and to reflect that either a judge or a magistrate may make an order for a non-intimate forensic procedure under section 23XWC, pursuant to 23XWO.

Item 38 - Paragraph 23XWD(b)

Paragraph 23XWD(b) sets out the circumstances in which an intimate forensic procedure can be carried out on an offender under Division 6A. Under paragraph 23XWD(b) a person is authorised to carry out an intimate forensic procedure on a person (other than a child or incapable person) who is a serious offender by order of a magistrate under section 23XWO. Section 23XWO, dealing with orders directing an offender to consent to a forensic procedure, however, refers to a judge or a magistrate making such an order.

Item 38 inserts a reference into subsection 23XWD(b) to a judge also being able to make the order under section 23XWO.

This is a minor amendment to correct a drafting error and to reflect that either a judge or a magistrate may make an order for a intimate forensic procedure under section 23XWD, pursuant to 23XWO.

Item 39 - Subsection 23XWE(1)

Subsection 23XWE(1) currently provides that the procedures set out in Division 6 of Part 1D in relation to the carrying out of forensic procedures on suspects can be used to carry out forensic procedures on offenders. In particular, subsection 23XWE(1) states that Division 6 is to apply as if references in that Division to a 'suspect' are references to an 'offender'.

During consultations with Commonwealth stakeholders in relation to subsection 23XWE(1) concerns were raised about the clarity of subsection 23XWE(1), and whether all the procedures set out in Division 6 could be applied to offenders as they are applied to suspects.

Subdivision F of Division 6 sets out procedures that apply following the taking of a DNA sample from a suspect. Sections 23XU, 23XV and 23XW require an investigating constable to make available to the suspect material from the suspect's DNA sample, copies of photos where these were taken as part of a forensic procedure under Part 1D, and copies of the results of DNA analysis respectively. In relation to the application of these sections to an offender, there is no 'investigating constable' from whom an offender is able to make a request that these items be provided.

Item 39 inserts a new subparagraph 23XWE(1)(b) to provide that for the purposes of subdivision F, a reference to the 'investigating constable' is to be taken as a reference to the 'AFP Commissioner'. This amendment will provide offenders with a process for applying to access material and samples that have been taken from them via a forensic procedure authorised under Part 1D.

In their submission to the Part 1D Review, the AFP expressed concerns about the application of section 23XJ to offenders. Section 23XJ provides that a person authorised to carry out a forensic procedure on a person or a constable, may use reasonable force to enable the forensic procedure to be carried out and to prevent the loss, destruction or contamination of any samples. A related section, section 23XK, provides that forensic procedures must not be carried out in a cruel, inhuman or degrading manner. The AFP have indicated a preference for making it clear on the face of subsection 23XWE(1) that use of force is authorised when carrying out a forensic procedure on an offender in certain circumstances.

Item 39 adds a statutory note to subsection 23XWE(1) to explicitly provide that in applying Division 6 to offenders, sections 23XJ and 23XK apply to the carrying out a forensic procedure on offenders.

Listing these two sections is not exhaustive and does not preclude the application of all other remaining sections within Division 6 to the carrying out of forensic procedures on offenders.

Item 40 - Paragraph 23XWL(c)

Part 1D provides that in certain circumstances law enforcement officers of a certain rank may order the carrying out of non-intimate forensic procedures on serious offenders. Section 23XWK permits a constable to order a non-intimate forensic procedure on a serious offender, where the offender's consent has been sought, the offender has not consented, and the constable has taken into account the matters set out in section 23XWL. One of the matters the constable must consider under paragraph 23XWL(c) is 'whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or other otherwise'.

It is unclear what type of evidence is necessary to satisfy this requirement and under what circumstances, if any, the potential for the carrying out of a forensic procedure would not be viewed as being of assistance to law enforcement.

Item 40 repeals paragraph 23XWL(c) to remove this requirement as it is considered unnecessary. The remaining requirements, including that the officer be satisfied that the carrying out of the procedure 'is justified in all the circumstances' (paragraph 23XWl(d)) are considered sufficient protection against the possibility of forensic procedures being carried out for improper or frivolous purposes.

Item 41 - After section 23XWN

Under section 23WR in Division 5 of Part 1D, a magistrate may, under sections 23WS and 23XA, order the carrying out of a forensic procedure on a suspect in three circumstances:

•

where the suspect is not in custody and has not consented to the forensic procedure; or

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the suspect is in custody and has not consented to the forensic procedure; or

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the suspect cannot consent to the procedure.

Section 23XWO sets out the procedure for making an application for an equivalent order for the carrying out of an intimate forensic procedure on an offender. Unlike the provisions relating to suspects, section 23XWO contains no reference to circumstances where the offender has not consented. Law enforcement agencies have argued that it is unclear whether informed consent must be sought and rejected prior to orders being sought under that section.

Item 41 inserts new section 23XWNA into Division 6A of Part 1D to provide the circumstances in which a judge or magistrate may order a forensic procedure under section 23XWO, including where an offender has not consented to a forensic procedure (whether or not consent has been sought). The purpose of this amendment is to clarify that an attempt to obtain consent is not necessary prior to an order being sought under section 23XWO.

This amendment aligns the procedures relating to offenders with those relating to suspects and will avoid potential challenges that would require separate court hearings to determine whether consent was sought.

This item implements recommendation 6(c) of the DNA Review, which recommended that amendments be made to Part 1D to make it clear that consent is not necessary prior to an order being sought under section 23XWO.

Item 42 - Subsection 23XWO(1)

Under section 23XWO a judge or a magistrate is currently able to order an intimate forensic procedure be carried out on an serious Commonwealth offender.

It was noted during the drafting of the amendments that judges or magistrates are unable to order a non-intimate forensic procedure, as opposed to an intimate forensic procedure on a serious offender.

Item 42 makes an amendment that would allow judges or magistrates to order either an intimate forensic procedure or a non-intimate forensic procedure. This amendment will allow judges and magistrates to consider the most appropriate forensic procedure in the specific circumstances of the case, whether it is an intimate forensic procedure (such as a blood sample - other than a blood sample by finger prick) or a less invasive non-intimate forensic procedure (such as a hair sample).

Item 42 also amends subsection 23XWO(1) to remove inappropriate phraseology. Section 23XWO(1) currently refers to an order being made by any judge or magistrate to direct a serious offender to consent to an intimate forensic procedure. Language referring to the order 'directing' the serious offender to 'consent' does not accord with the voluntary nature of consent. This amendment removes the reference to directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on a serious offender and replaces it with an order 'for the carrying out of an intimate forensic procedure, or a non-intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person)'.

This is a minor technical amendment and would not change the circumstances in which an application can be made for the carrying out of the procedure under subsection 23XWO(1) or the matters that the judge or magistrate is required to take into account when determining whether to make an order under section 23XWO.

Item 43 - Paragraph 23XWO(7)(c)

Part 1D provides that law enforcement officers must seek a court order to carry out an intimate forensic procedure on a serious offender. Section 23XWO provides that a judge or magistrate may order the carrying out of a forensic procedure on a serious offender following such an application. In considering these applications, the judge or magistrate is required to determine under paragraph 23XWO(7)(c), 'whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or other otherwise'.

It is unclear what type of evidence is necessary to satisfy this requirement and under what circumstances, if any, the potential for the carrying out of a forensic procedure would not be viewed by the courts as being of assistance to law enforcement.

Item 43 repeals paragraph 23XWO(7)(c) to remove this requirement as it is considered unnecessary. The remaining requirements, including that the judge or magistrate be satisfied that the carrying out of the procedure 'is justified in all circumstances' (paragraph 23XWO(7)(d)) is sufficient protection against orders being sought for improper or frivolous purposes.

This item implements recommendation 6(b) of the DNA Review which recommended the requirement for the judge or the magistrate to consider whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or other otherwise' in subsection 23XWO(7)(d) be repealed .

Item 44 - After section 23XWO

Sections 23WV, 23WW and 23XGD govern the procedure for securing the presence of suspects (whether they are in custody or not) in court for the purpose of hearing an application for a judge's or magistrate's order to carry out a forensic procedure. As there is no such provision in Part 1D in relation to offenders, recommendation 6(d) of the DNA Review suggested the insertion of new provisions to govern how offenders should be dealt with in relation to equivalent hearings.

Item 44 inserts new sections 23XWOA and 23XWOB to create a similar set of procedures for securing the attendance of an offender where a judge or a magistrate's order to conduct a forensic procedure is sought (for example, if the offender is a minor or the procedure is an intimate forensic procedure). These provisions are modelled on the current requirements relating to securing the presence of suspects for testing. However, there are some minor points of difference between existing provisions relating to suspects and the new provisions relating to offenders, to ensure the processes of removing and returning an offender from detention for a court hearing and subsequent testing is as streamlined as possible.

New section 23XWOA deals with securing the presence of the offender where he or she is in custody. If a court refuses the application for a forensic procedure, the constable in temporary custody of the offender must return them to the place of original custody without delay (new subsection 23XWOA(2)). Where an application is made under section 23XWO to a judge or a magistrate for an order under that section for the carrying out of a forensic procedure on an offender who is in custody or otherwise detained under a Commonwealth, State or Territory law, the judge or magistrate may, on application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody of the constable for the hearing of the application (new subsection 23XWOA(1)). Following such a procedure the offender would need to be returned without delay to the place of original detention (new subsection 23XWOA(3)).

New section 23XWOB deals with securing the presence of the offender where he or she is not in custody. These provisions mirror existing provisions set out in section 23WW relating to securing the presence of suspects. Where an application is made under section 23XWO to a judge or a magistrate for an order under that section for the carrying out of a forensic procedure on an offender who is neither in custody or detained under Commonwealth, State or Territory law, the judge may on application of a constable issue a summons for the appearance of the offender at the hearing of the application of the application (new paragraph 23XWOB(1)(c)). The judge or the magistrate may only issue a summons if satisfied it is necessary to ensure the appearance of the offender at the hearing, and that it is otherwise justified (new subsection 23XWOB(3)). A judge or a magistrate may also on application of a constable issue a warrant for the arrest of the offender for the purposes of the hearing of the application (new paragraph 23XWOB(1)(d)). Such an application must be made by information on oath or affirmation, accompanied by an affidavit that sets out either:

•

why arrest is necessary to ensure the appearance at the hearing and why a summons would not ensure the appearance of the offender, or

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that the offender might destroy evidence that might be obtained by carrying out the forensic procedure, or

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that the issue of the warrant is otherwise justified.

Item 45 - Paragraph 23XWP(1)(b)

Section 23XWP provides for the carrying out of forensic procedures on offenders where they are in prison or another place of detention in certain circumstances. Paragraph 23XWP(1)(b) provides that where an offender is in prison or another place of detention and a judge or a magistrate orders the offender to 'permit a forensic procedure to be carried out', the judge or magistrate may order that the constable or a person who is authorised under Division 6 to carry out a particular forensic procedure, be permitted to attend on the offender in the prison or place of detention to allow the procedure to be carried out.

The reference in paragraph 23XWP(1)(b) to an offender 'permitting' a procedure does not accord with the fact that a judge or a magistrate has ordered it occur. The word 'permit' suggests that the offender undertakes the procedure voluntarily, which may not be the case.

Item 45 makes a technical amendment to substitute the reference to the court ordering an offender to 'permit' a procedure with a reference to the court ordering the 'carrying out of a forensic procedure under this Division on the offender'. This is a minor amendment and does not does not change the circumstances in which a judge or magistrate can make such an order, or the circumstances in which a constable can attend the prison or place of detention for the forensic procedure to be carried out.

Item 46 - Subsection 23XWP(3)

Section 23XWP provides for the carrying out of forensic procedures on an offender, who is not in prison or another place of detention, in certain circumstances. Subsection 23XWP(3) provides a judge or a magistrate may order the offender to attend a police station, or other specified place, within a specified period to 'permit a forensic procedure to be carried out'.

The reference in paragraph 23XWP(3) to a judge or magistrate making an order for an offender to 'permit' a forensic procedure does not accord with the fact that a judge or a magistrate has ordered it occur. The word permit suggests that the offender undertakes the procedure voluntarily, which may not be the case.

Item 46 makes a technical amendment to substitute the reference to the court ordering the offender to 'permit' a procedure with a reference to the court ordering the 'carrying out of a forensic procedure under this Division on an offender who is not in prison or another place of detention'. This is a minor amendment and does not does not change the circumstances in which a judge or magistrate can make such an order, or the circumstances in which a constable can attend the prison or place of detention for the forensic procedure to be carried out.

Item 47 - Subsection 23XWP(4)

Subsection 23XWP(4) provides that where an offender has been ordered to permit a forensic procedure be carried out, he or she will be guilty of an offence if they fail to permit the procedure to be undertaken. Proposed amendments to paragraph 23XWP(1)(b) and subsection 23XWP(3) (in items 45 and 46, Schedule 1 above) replace references to 'permitting' a procedure with references to the court ordering a forensic procedure take place. The reference to an offender being ordered to permit a procedure does not accord with the fact that a judge or a magistrate has ordered it occur, and does not accord with the new language inserted into paragraph 23XWP(1)(b) and subsection 23WXP(3) where references to an offender 'permitting' a procedure take place have been replaced with references to a court ordering a forensic procedure take place.

This item makes a technical amendment to substitute the reference to 'an offender being ordered to permit the carrying out of a forensic procedure' with a reference 'if a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender' to clarify that judges and magistrates order the procedures under Division 6A.

This is a minor amendment and does not does not change the circumstances in which a judge or magistrate can make such an order, or the circumstances in which a constable can attend the prison or place of detention for the forensic procedure to be carried out.

Item 48 - Subsection 23XWQ(2)

Subsection 23XWQ(2) sets out the circumstances in which a person is authorised to carry out a forensic procedure on a volunteer. Where the volunteer is not a child or an incapable person, a forensic procedure can be carried out with the informed consent of the volunteer, provided it is given in accordance with the requirements set out in section 23XWR.

Where the volunteer is a child or incapable person, the forensic procedure can only be carried out if informed consent is obtained from the parent or guardian of the volunteer in accordance with the requirements set out in section 23XWR, or by an order of a magistrate under section 23XWU. The person who is authorised to carry out the forensic procedure on the child or incapable person must inform the volunteer that, even though consent has been given or an order made, the procedure will not be carried out if he or she objects to the procedure.

Item 48 amends subsection 23XWQ(2) by inserting the phrase '(the authorised person )' after 'A person' at the start of that subsection to clarify that the person referred to in that subsection is in fact the person authorised to carry out the forensic procedure on the volunteer. This amendment is a minor, technical amendment that is consequential to the amendment being made by item 49 of Schedule 1.

Item 49 - After subparagraph 23XWQ(2)(b)(i)

Currently, there is no requirement that consent be sought from children or incapable persons when a forensic procedure has been authorised under Part 1D. Instead the informed consent of the parent or guardian is sought. Section 23XWR sets out the procedure for seeking the informed consent of the parent or guardian of a child or incapable person. Subparagraph 23XWQ(2)(b)(ii) requires children to be informed that, even though their parent or guardian has already given consent, or an order has been made by a magistrate, a forensic procedure will not be carried out if they object.

The Office of the Privacy Commissioner submitted to the DNA Review that changes should be made to the Crimes Act to provide greater control over decision-making processes for children and incapable persons in relation to the Part 1D procedures. ^[6] In response to this suggestion, the DNA Review, whilst noting the practical difficulties in gauging the decision-making capacity of a child, recommended that, in some circumstances both the consent of a parent or guardian and the consent of the child be required to undertake a forensic procedure authorised by Part 1D. ^[7] A similar issue applies in relation to the capacity of a person who is incapable of providing consent.

Following consultation with law enforcement agencies, the Office of the Privacy Commissioner and the Office of the Commonwealth Ombudsman, a modified scheme was proposed for seeking informed consent to perform a forensic procedure on a child, or incapable person, to provide such persons with a greater control over the consent process. This modified scheme would not require a constable or person undertaking the forensic procedure to ascertain the consent of a child or incapable person to the procedure, as this would place a constable or the person performing the procedure in a position of having to determine the capacity of the child or incapable person to understand information about complex forensic procedures. Rather, the new scheme strengthens existing safeguards that prevent a forensic procedure being carried out on a child or incapable person who objects to the process and ensures certain information is provided to that child or incapable person, in accordance with good privacy practice.

Item 49 inserts new subparagraph 23XWQ(2)(b)(ia) into paragraph 23XWQ(2)(b) to place an obligation on constables involved in obtaining informed consent from the parent or guardian of the volunteer who is a child or incapable person, to inform the child or incapable person that, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out. In conjunction with existing subparagraph 23XWQ(2)(b)(ii) this new process provides the child or incapable person with the opportunity to resist or object to the carrying out of the procedure both at the time that the consent of their parent or guardian is sought (new subparagraph 23XWQ(2)(b)(ia)), and also at the time where the procedure is being conducted (existing subparagraph 23XWQ(2)(b)(ii)).

Item 49 is aimed at ensuring children and incapable persons have more than one opportunity to object to the carrying out of forensic procedure and are aware of this right in advance of the procedure. The provision of an additional objection opportunity also gives children or incapable persons more time to consider the procedure and to make a decision without the potential stress of being faced with the question for the first time immediately prior to the procedure taking place.

Item 50 - Subparagraph 23XWQ(2)(b)(ii)

Item 50 amends subparagraph 23XWQ(2)(b)(ii) by removing a reference to 'after the person' and substituting a reference to 'after the authorised person' to clarify that the person referred to in that subparagraph is the person authorised to carry out the forensic procedure on the volunteer. This amendment is a minor, technical amendment that is consequential to the amendment being made by item 49 (above).

Item 51 - Paragraph 23XWR(2)(b)

Currently a DNA profile is uploaded onto one of several NCIDD indices depending on the purpose for which the sample was taken. Section 23YDAC of Division 8A outlines the different indices of DNA profiles on the system, including the volunteers (limited purposes) index. Division 8A also specifies what type of profiles can be uploaded onto each index, and creates rules that govern how profiles contained on each index can be used.

Under Division 8A, the volunteers (limited purpose) index includes the DNA profiles of individuals who have voluntarily provided DNA samples to assist in a specific investigation, in accordance with Division 6B or under the corresponding law of a participating jurisdiction. For example, a voluntary sample may be taken from a person who has a missing relative to assist in identifying a body. Placement of a DNA profile on the limited purpose volunteer index creates strict restrictions on how the profile is used and when it is destroyed. For example, subsection 23XWR(2) requires that this information can only be used for the specific limited purpose for which it was taken, and allows the volunteer to make a request that the sample and related profile be destroyed at any time.

During the DNA Review, stakeholders raised concerns that volunteers are not fully cognisant of the option to provide a DNA profile only for limited purposes and may be placed on an index that can be matched in relation to other criminal investigations, rather than the specific investigation for which the sample was provided. Currently, section 23XWR sets out the information that must be given to the volunteer, or the parent or guardian of a volunteer when a constable is seeking the volunteer's consent for a forensic procedure to be carried out on the volunteer. Subsection 23XWR(2)(b) provides that the constable must inform the volunteer, or the parent or guardian of the volunteer, that the volunteer has a choice as to whether the information is stored on the volunteers (limited purpose) index or the volunteers (unlimited purpose) index.

Item 51 amends paragraph 23XWR(2)(b) to create a presumption that all volunteer profiles are for limited purposes and that all volunteers must be informed of this presumption. However, amended paragraph 23XWR(2)(b) would not prevent a volunteer from requesting that their DNA profile be placed on an index other than the volunteers (limited purpose) index. This amendment implements recommendation 7 of the DNA Review, that Division 6B be amended to create a presumption that volunteer DNA profiles are to be placed on the 'limited purposes' index. It is aimed at providing greater protection for individuals voluntarily providing a DNA sample and may also lead to greater willingness on the part of volunteers to provide assistance in law enforcement investigations.

Item 52 - Section 23YDAC

This item makes a minor amendment to resolve a drafting error by renumbering a subsection in section 23YDAC. It inserts a '(1)' before 'In this' at the outset of the provision to provide subsection references to which paragraphs and subparagraphs referred to in the section may be linked.

Item 53 - Section 23YDAC (definition of Commonwealth DNA database system)

The Commonwealth DNA database system is defined in section 23YDAC to mean a database containing: a series of seven indices of DNA profiles (crime scene index, missing persons index, unknown deceased persons index, serious offenders index, volunteers (unlimited purpose) index, volunteers (limited purpose) index, and suspects index); a statistical index; and any other index prescribed by regulations.

Item 53 amends that definition to clarify that the Commonwealth DNA database system is managed by the Commonwealth. This clarification will ensure that the Commonwealth DNA database system is distinguished from any other database that may contain similarly named DNA indices, for example the DNA databases of foreign law enforcement agencies with similar indices.

Item 54 - Section 23YDAC (paragraph (a) of the definition of Commonwealth DNA database system)

Item 54 amends the definition of 'Commonwealth DNA database system' to ensure that in relation to a crime scene index, the database can contain material taken or obtained by a foreign law enforcement agency.

Subsection 23YDAC(a) describes the various indices of DNA profiles that form part of the Commonwealth DNA database system. These indices are described as indices of DNA profiles that relate to 'material taken or obtained by a Commonwealth agency'. Item 54 inserts a reference that clarifies that this material can include, in relation to the crime scene index, material that has been taken or obtained by a foreign law enforcement agency.

When foreign police find forensic material at a crime scene from which they can extract a DNA profile, they may in certain circumstances make a request to the AFP that this profile be matched on profiles held on NCIDD. Paragraph 23YDAE(d) provides that information on the Commonwealth DNA database system and information on the NCIDD, can be used for the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 . However, Part 1D currently makes no express provision for DNA profiles obtained by foreign law enforcement agencies to be uploaded onto the various NCIDD indices. For the purposes of checking whether or not a DNA profile has a match with a profile contained on the NCIDD, the jurisdiction that holds a DNA profile and wants to search for possible matches must load the profile onto a relevant index on the NCIDD. If there is no index on which the profile can be accommodated under the rules set out in Part 1D, or in corresponding State or Territory legislation, the profile cannot be matched.

The definitions set out in Part 1D of 'the Commonwealth DNA Database system', 'the NCIDD' and the descriptions of the indices of DNA profiles on NCIDD pertain only to DNA profiles that have been 'taken or obtained' by a Commonwealth law enforcement agency. Furthermore, there is currently no free standing search engine onto which data may be loaded to be checked against profiles held on other NCIDD indices. These definitions create uncertainty about the circumstances in which the AFP can match DNA profiles sourced from forensic samples obtained by foreign law enforcement agencies with profiles on the NCIDD in response to actual or anticipated mutual assistance requests.

The DNA Review, in recommendation 5(a), recommended that express statutory authority be provided for the AFP to provide a response to an inquiry from a foreign law enforcement agency as to whether or not there is a match with a profile held by the foreign law enforcement agency on NCIDD. The DNA Review noted that it would be necessary to enter the foreign profile onto the NCIDD to facilitate such matching, and suggested that the most appropriate index on which to enter the profile would be the crime scene index.

Items 55, 56, 59 and 66, implement recommendation 5 of the DNA Review.

Item 55 - Section 23YDAC (after paragraph (a) of the definition of crime scene index)

When foreign police find forensic material at a crime scene from which they can extract a DNA profile, they may in certain circumstances make a request to the AFP that this profile be matched on profiles held on NCIDD. Paragraph 23YDAE(d) provides that information on the Commonwealth DNA database system and information on the NCIDD, can be used for the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 . However, Part 1D currently makes no express provision for DNA profiles obtained by foreign law enforcement agencies to be uploaded onto the various NCIDD indices. For the purposes of checking whether or not a DNA profile has a match with a profile contained on the NCIDD, the jurisdiction that holds a DNA profile and wants to search for possible matches must load the profile onto relevant index on the NCIDD. If there is no index on which the profile can be accommodated under the rules set out in Part 1D, or in corresponding State or Territory legislation, the profile cannot be matched.

The definitions set out in Part 1D of 'the Commonwealth DNA Database system', 'the NCIDD' and the descriptions of the indices of DNA profiles on NCIDD pertain only to DNA profiles that have been 'taken or obtained' by a Commonwealth law enforcement agency. Furthermore, there is currently no free standing search engine onto which data may be loaded to be checked against profiles held on other NCIDD indices. These definitions create uncertainty about the circumstances in which the AFP can match DNA profiles sourced from forensic samples obtained by foreign law enforcement agencies with profiles on the NCIDD in response to actual or anticipated mutual assistance requests.

The DNA Review, in recommendation 5(a), recommended that express statutory authority be provided for the AFP to provide a response to an inquiry from a foreign law enforcement agency as to whether or not there is a match with a profile held by the foreign law enforcement agency on NCIDD. The DNA Review noted that it would be necessary to enter the foreign profile onto the NCIDD to facilitate such matching, and suggested that the most appropriate index on which to enter the profile would be the crime scene index.

Items 55, 56, 59 and 66, implement recommendation 5 of the DNA Review.

Item 55 inserts a new paragraph 23YDAC(aa) into the definition of 'crime scene index' to

remove uncertainty as to when a foreign profile, temporarily uploaded onto a NCIDD index, would become 'part' of that index, and to ensure that there is clear statutory support for the placement of foreign DNA profiles that have been provided to the AFP for the purposes of an actual or anticipated mutual assistance request, onto the Commonwealth DNA database system (and thus onto NCIDD).

This amendment provides that DNA profiles derived from forensic material found at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been committed, can form part of the crime scene index of the Commonwealth DNA database system. These profiles, like other profiles held on the crime scene index, will be matched in accordance with the rules set out in section 23DAF, and information relating to such matching will only be disclosed in accordance with the proposed amended subsection 23YDAE(2) in item 59, Schedule 1, detailed below. Likewise, any destruction or de-identification requirements set out in Part 1D applying to profiles held on the 'crime scene index' would apply to the foreign profiles.

Specifically, the amendment made by this item provides that the crime scene index, as defined by section 23YDAC, can accommodate DNA profiles derived from forensic material 'found at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been committed'.

Item 56 - Section 23YDAC (at the end of the definition of State/Territory DNA database system)

Item 56 adds a statutory note at the end of the definition of 'State/Territory DNA database system' in section 23YDAC to 'see also subsection (2)', which is a new subsection inserted by Item 57 of Schedule 1.

Item 57 - Section 23YDAC (definition of volunteers (limited purposes) index)

Section 23YDAC contains a number of definitions relevant to Division 8A in relation to Commonwealth and State/Territory DNA database systems including descriptions of the indices contained on those database systems. The descriptions of the indices outline the sort of DNA profile that can be uploaded, and limit how the profiles placed on each index can be used. For example, under 23YDAC profiles placed on the 'unknown deceased persons index' can only relate to DNA material taken or obtained by a Commonwealth agency from a deceased person whose identify is unknown.

The definition of 'volunteers (limited purposes) index' provides that this is an index of DNA profiles derived from forensic material taken in accordance with Division 6B or under a corresponding law of a participating jurisdiction from volunteers who (or whose parents or guardians) have been informed that information obtained will be used only for a purpose specified to them under paragraph 23XWR(2)(b).

Item 57 amends the definition of 'volunteers (limited purposes) index' by renumbering existing paragraph 23XWR(2)(b) to paragraph 23XWR(2)(ba). This amendment is consequential to the amendment made by item 51, Schedule 1, which inserts a new paragraph into subsection 23XWR(2).

Item 58 - At the end of section 23YDAC

Section 23YDAC contains a number of definitions relevant to Division 8A in relation to Commonwealth and State/Territory DNA database systems including descriptions of the indices contained on those database systems. Section 23YDAC contains a definition of 'State/Territory DNA database systems' meaning a database held by, or on behalf of, a participating jurisdiction for the purposes of a corresponding law.

Item 58 further refines this definition to specify that, for a participating jurisdiction, the database referred to in the definition of 'State/Territory DNA database system' can be taken to include parts of the NCIDD that relate to that participating jurisdiction.

This measure implements recommendation 1(a) of the DNA Review, which suggested that Part 1D be amended to make it clear that States and Territories may utilise the NCIDD as their sole database if they choose to do so. There are a range of advantages to jurisdictions utilising the NCIDD as their sole database, including the promotion of efficiency and consistent national privacy protections. Item 58 removes any ambiguity in the existing language of Part 1D that may be seen by the States and Territories to prevent them using NCIDD as their sole database.

Item 59 - After paragraph 23YDAE(2)(d)

Section 23YDAE deals with the use of information on the Commonwealth DNA Database system or NCIDD. Subsection 23YDAE(1) makes it an offence if a person accesses information stored on the Commonwealth DNA database system or NCIDD, unless that access is done in accordance with one of the purposes set out in subsections 23YDAE(2), (2A) or (3). Under paragraph 23YDAE(2)(e), the NCIDD can be accessed for the purposes of and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 .

Item 59 inserts new paragraph 23YDAE(2)(da) to provide that one purpose for which a person may access the NCIDD is for the purpose of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 . The information intended to be allowed to be disclosed under this paragraph is preliminary advice in the form of a 'yes' or 'no' response to assist the foreign law enforcement agencies' consideration of whether to proceed with a formal mutual assistance request. The AFP will develop internal policies to reflect the limited information that will be disclosed in response to these preliminary requests.

This amendment, in conjunction with items 54, 55, 56 and 66 of Schedule 1, implements recommendation 5 of the DNA Review, which recommended that express statutory authority be provided for the AFP to respond to requests from foreign law enforcement agencies to facilitate the use of the NCIDD to assist foreign law enforcement agencies for the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 .

Item 60 - Paragraph 23YDA(1)(b)

Under section 23YDA, interpreter services may be provided to a suspect where a constable believes on reasonable grounds that the suspect has an inadequate knowledge of the English language, or physical disability that prevents oral communication in the English language and the constable proposes to take certain action, listed in subsection 23YDA(2).

Item 60 amends paragraph 23YDA(1)(b) to extend interpreter services to offenders and volunteers.

This item implements recommendation 8(d) of the DNA Review, which recommended that the interpretation facility provided for in section 23YDA should be extended to cover offenders and volunteers.

Item 61 - Paragraph 23YDA(2)(a)

Under section 23YDA, interpreter services may be provided to a suspect where a constable believes on reasonable grounds that the suspect has an inadequate knowledge of the English language, or physical disability that prevents oral communication in the English language and the constable proposes to take certain action, listed in subsection 23YDA(2).

Item 61 amends paragraph 23YDA(2)(a) to extend interpreter services currently available when a constable is asking a suspect to consent to a forensic procedure, also to offenders and volunteers.

This item implements recommendation 8(d) of the DNA Review, which recommended that the interpretation facility provided for in section 23YDA should be extended to cover offenders and volunteers.

Item 62 - Paragraph 23YDA(2)(b)

Under section 23YDA, interpreter services may be provided to a suspect where a constable believes on reasonable grounds that the suspect has an inadequate knowledge of the English language, or physical disability that prevents oral communication in the English language and the constable proposes to take certain action, listed in subsection 23YDA(2).

Item 62 amends paragraph 23YDA(2)(b) to extend interpreter services to an offender in custody where they are available to a suspect in custody, when a constable is ordering the carrying out of a non-intimate forensic procedure.

This item implements recommendation 8(d) of the DNA Review, which recommended that the interpretation facility provided for in section 23YDA should be extended to cover offenders and volunteers.

Item 63 - Paragraph 23YDA(2)(c)

Under section 23YDA, interpreter services may be provided to a suspect where a constable believes on reasonable grounds that the suspect has an inadequate knowledge of the English language, or physical disability that prevents oral communication in the English language and the constable proposes to take certain action, listed in subsection 23YDA(2).

Item 63 amends paragraph 23YDA(2)(c) to extend interpreter services currently available when a constable is applying to a magistrate for a final or interim order for the carrying out of a forensic procedure on a suspect, also to offenders, children or incapable persons.

This item implements recommendation 8(d) of the DNA Review, which recommended that the interpretation facility provided for in section 23YDA should be extended to cover offenders and volunteers.

Item 64 - Paragraphs 23YDA(2)(d), (e) and (f)

Under section 23YDA, interpreter services may be provided to a suspect where a constable believes on reasonable grounds that the suspect has an inadequate knowledge of the English language, or physical disability that prevents oral communication in the English language and the constable proposes to take certain action, listed in subsection 23YDA(2).

Item 64 amends paragraphs 23YDA(2)(d), (e) and (f) to extend interpreter services currently available to suspects to volunteers and offenders where a constable proposes to:

•

caution an offender or volunteer (paragraph 23YDA(2)(d))

•

carry out, or arrange for the carrying out of, of a forensic procedure on an offender or volunteer ((paragraph 23YDA(2)(e)), or

•

give an offender or volunteer an opportunity to view a video recording made under Part 1D (paragraph 23YDA(2)(f)).

This item implements recommendation 8(d) of the DNA Review, which recommended that the interpretation facility provided for in section 23YDA should be extended to cover offenders and volunteers.

Item 65 - Subsection 23YG(2)

Where material must be made available to suspects, offenders and volunteers under Part 1D, that material must be made available in accordance with the procedures and time limits set out in section 23YG. Paragraphs 23YG(2)(a) and (b) currently specify that the relevant time limit for that material to be made available is within seven days of that material coming into existence or a request for the material being made.

Item 65 amends paragraphs 23YG(2)(a) and (b) to extend that time limit to 14 days. This item implements recommendation 13 of the DNA Review and is in response to concerns raised by the AFP about the practicality of meeting the seven day timeframe.

Item 66 - After paragraph 23YO(2)(d)

Section 23YO sets out the purposes for which information stored on the NCIDD or the Commonwealth DNA database system may be disclosed. Subsection 23YO(1) makes it an offence for a person to disclose information stored on the Commonwealth DNA database system or NCIDD for purposes other than those set out in subsections 23YDAE(2) and (3). Paragraph 23YO(2)(e) provides that one of those purposes includes the purposes of, and in accordance with, the Mutual Assistance in Criminal Matters 1987 or the Extradition Act 1988 .

The DNA Review, in recommendation 5(a), recommended that express statutory authority be provided for the AFP to provide a response to an inquiry from a foreign law enforcement agency as to whether or not there is a match with a profile held by the foreign law enforcement agency on NCIDD. The Review noted that when foreign police find forensic material at a crime scene from which they can extract a DNA profile, they may ask Australia whether there is a match for that profile on the NCIDD. ^[8] The Review also noted that a clear statutory charter should be provided to govern the exchange of information between Australia and the foreign law enforcement agency. ^[9] The Review suggested that legislation be put in place to enable the AFP to provide a 'yes' or 'no' response to an enquiry from foreign police as to whether there is a match between their profile and the profile on NCIDD. Once this initial match is established, the foreign police would then be placed in a position to consider whether or not to submit a formal request for mutual assistance to obtain from Australia any further information about the matched profile. ^[10]

Item 66 inserts new paragraph 23YO(2)(da) to ensure there are no restrictions in relation to the disclosure of information contained on the Commonwealth DNA database system or NCIDD in response to requests from foreign law enforcement agencies. In conjunction with items 54, 55, 56 and 59 of Schedule 1, item 66 implements recommendation 5 of the DNA Review. It will enable the AFP to respond to requests from foreign law enforcement agencies to match profiles on NCIDD with profiles obtained as part of criminal investigations by foreign agencies. New paragraph 23YO(2)(da) provides that one purpose for which a person may disclose information stored on NCIDD is for the purpose of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1986 .

The information intended to be allowed to be disclosed under this paragraph is preliminary advice in the form of a 'yes' or 'no' response to a request for mutual assistance. If a match is made, this item will enable the AFP to notify the foreign law enforcement agency of such a match to assist the foreign law enforcement agency to decide whether to undertake mutual assistance processes for the provision of further information about the DNA profile, including identifying information about the person to whom the profile relates.

Item 67 - After section 23YP

Item 67 inserts into Part 1D new section 23YPA to provide that all Commonwealth forensic analysis must be carried out in an accredited laboratory. Read in conjunction with the amendments made by item 1, Schedule 1, all Commonwealth forensic analysis must be carried out by either a forensic laboratory accredited with the National Association of Testing Authorities Australia, or a laboratory that is prescribed by the regulations.

The accreditation requirement applies regardless of whether testing is occurring on behalf of Commonwealth law enforcement agencies, on behalf of suspects accused of committing a Commonwealth offence, or on behalf of offenders.

The accreditation requirement seeks to address public concerns about the accuracy of test results provided by some forensic laboratories.

This item also implements recommendation 16 of the DNA Review, which considered the auditing regimes related to accreditation processes an important mechanism to reducing potential contamination of samples.

Item 68 - Subsection 23YQ(1)

Section 23YQ provides that the AFP Commissioner may delegate all or any of his or her functions under Part 1D. Subsection 23YQ(1) currently provides that the Commissioner of the AFP may delegate all or any of his or her functions and powers under Part 1D to a 'constable' or 'staff member'.

Item 68 repeals the term 'staff member' in subsection 23YQ (1) and inserts a replacement term 'AFP appointee'. The repeal of the term staff member is necessary as subsection 23YQ(2) provides that 'staff member' has the same meaning as it has in the AFP Act. The reference to 'staff member' in the AFP Act was repealed by the Australian Federal Police Legislation Amendment Act 2000 .

Item 69, Schedule 1 (below) provides that the term 'AFP appointee' has the same meaning as the term has in AFP Act. Item 68 and 69 of Schedule 1 together are required to ensure that the AFP Commissioner can continue to make valid delegations under section 23YQ.

Item 69 - Subsection 23YQ(2)

Section 23YQ currently provides that the Commissioner of the AFP may delegate all or any of his or her functions and powers under Part 1D to a constable or staff member. Subsection 23YQ(2) provides that 'staff member' has the same meaning as it has in the the AFP Act. The reference to 'staff member' in the AFP Act was repealed by the Australian Federal Police Legislation Amendment Act 2000 .

Item 68 repeals the term 'staff member' in subsection 23YQ (1) and inserts a replacement term 'AFP appointee'. Item 69 provides that the term AFP appointee has the same meaning as the term has in AFP Act where it means:

•

a Deputy Commissioner,

•

an AFP employee,

•

a special member, a special protective service officer,

•

a person engaged overseas under section 69A of the AFP Act to perform duties overseas as an employee of the Australian Federal Police; or

•

a person who is determined by the Commissioner under the Act to be an AFP appointee, or is performing certain functions for the AFP under section 69D of the AFP Act.

The replacement of the term staff member is necessary to ensure that the AFP Commissioner can continue to make valid delegations under section 23YQ.

Item 70 - Subsection 23YUC(1)

Section 23YUB provides that the Minister may enter into arrangements with participating jurisdictions to create a register of orders for the carrying out of forensic procedures under Part 1D, or under the corresponding laws of participating jurisdictions. These arrangements facilitate Commonwealth, State and Territory law enforcement agencies being able to inform and authorise, via the register, a counterpart in a different jurisdiction to perform a forensic procedure on behalf of the agency who has registered the order.

Section 23YUC provides that a person is authorised to carry out the forensic procedure authorised by an order that is registered in accordance with an agreement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The scheme established under section 23YUC aims to ensure that forensic procedures can be effectively carried out where a Commonwealth law enforcement agency identifies the need and is authorised under Part 1D, to carry out a forensic procedure on a person who may be located in one of the participating jurisdictions. For example, the Commonwealth may register an order for a forensic procedure to be undertaken on a person suspected of a Commonwealth offence where this person is located in New South Wales, and where the New South Wales Police Force may be in a better position to locate this person and facilitate the undertaking of the forensic procedure. Under section 23YUC, the New South Wales Police Force may undertake and carry out the relevant procedure in accordance with Division 6 of Part 1D.

Section 23YUC (1) currently requires the person carrying out a forensic procedure (both intimate and non-intimate), authorised by a registered order, to carry out the forensic procedure in accordance with Division 6, and not otherwise. State and Territory law enforcement agencies are therefore required to comply with collection processes under Part 1D rather than the equivalent, but not identical, collection processes established under State and Territory legislation ('the corresponding law of the participating jurisdiction'). As such, this requirement has created an unnecessary administrative burden and has impeded inter-jurisdictional cooperation in serious criminal investigations. The amendments being made by items 70 and 72 of Schedule 1 introduce measures to resolve this issue, where orders relate to non-intimate forensic procedures under Part 1D.

Item 70 amends subsection 23YUC(1) to provide that this subsection will now only refer to intimate forensic procedures by omitting the words 'the forensic procedure' and substituting 'an intimate forensic procedure'. In this situation, intimate forensic procedures, when carried out by a participating jurisdiction in accordance with a registered order, are to be carried out in accordance with Part 1D (as is already the case), given the relative seriousness and intrusiveness of such procedures.

This item implements recommendation 6(e) of the DNA Review to allow a senior police officer or equivalent of another jurisdiction to authorise the carrying out of a non-intimate forensic procedure on a suspect for a Commonwealth offence where the suspect is arrested in that jurisdiction.

Item 71 - Subsection 23YUC(1)

Section 23YUC provides that a person is authorised to carry out the forensic procedure authorised by an order that is registered in accordance with an agreement referred to in subsection 23YUB(1) anywhere in the Commonwealth. Under Part 1D, and equivalent legislation in participating jurisdictions, Commonwealth, State and Territory law enforcement agencies can register orders that authorise a forensic procedure to be carried out by their counterparts.

Item 71 inserts the words 'under this Part' after the words 'an order' in subsection 23YUC(1). Insertion of the reference to Part 1D makes it clear that the reference to 'an order' in subsection 23YUC(1) only relates to Commonwealth orders made under Part 1D. The reference to an order 'made under this Part' does not alter the interpretation of section 23YUC but makes it clear, on the face of the provision, that constitutionally the Commonwealth can only enable a person to carry out the forensic procedure authorised by an order registered by the Commonwealth

Item 72 - After subsection 23YUC(1)

Section 23YUC provides that a person is authorised to carry out the forensic procedure authorised by an order that is registered in accordance with an agreement referred to in subsection 23YUB(1) anywhere in the Commonwealth. Section 23YUC (1) currently requires the person carrying out a forensic procedure (both intimate and non-intimate), authorised by a registered order, to carry out the forensic procedure in accordance with Division 6 and not otherwise. State and Territory law enforcement agencies are therefore required to comply with collection processes under Part 1D rather than the equivalent, but not identical, collection processes established under State and Territory legislation ('the corresponding law of the participating jurisdiction'). As such, this requirement has created an unnecessary administrative burden and has impeded inter-jurisdictional cooperation in serious criminal investigations.

Recommendation 6(e) of the DNA Review recommended that amendments be made to Part 1D to allow a senior police officer or equivalent of another jurisdiction to authorise the carrying out of a non-intimate forensic procedure on a suspect for a Commonwealth offence where the suspect is arrested in that jurisdiction. ^[11] The amendments being made by items 70 and 72 of Schedule 1 introduce measures to resolve this issue where orders relate to non-intimate forensic procedures under Part 1D.

Item 72 inserts new subsection 23YUC(1A) to provide that where it is a 'non-intimate procedure' that procedure is to be carried out in accordance with either Part 1D or the law of the participating jurisdiction. This will give law enforcement officers from participating jurisdictions the freedom to choose whether they wish to use law enforcement powers set out in legislation from the Commonwealth, or their jurisdiction.

Item 73 - At the end of Division 11 of Part 1D

Division 6A of Part 1D provides that DNA forensic samples can be collected from persons who are under sentence for a serious or prescribed offence and sets out the relevant procedures for the collection of such samples. These offenders include those who have been convicted of a serious or prescribed offence under a law of the Commonwealth, or a serious or prescribed State offence that has a federal aspect. Such offences are generally punishable by a maximum penalty of imprisonment for life or 2 or more years.

Commonwealth offenders may be imprisoned in State and Territory correctional facilities. Generally, this means that where the DNA of such offenders can be collected under Part 1D, the AFP must negotiate with State and Territory correctional authorities for access to such prisoners. In some circumstances, the AFP has been unable to enter correctional facilities because of an absence of any agreement between the AFP and the relevant State or Territory authority as to the conditions of entry. The DNA Review considered that a legislative amendment be made to remove any doubt as to the AFP's ability to enter into arrangement's with State and Territory authorities, and to encourage the provision of access to prisons by the AFP to collect the DNA of certain Commonwealth offenders.

Item 73 would implement recommendation 16(a) of the DNA Review by inserting a new section 23YUDA that provides that the AFP Commissioner may, on behalf of the Commonwealth, enter into an arrangement with the head of a prison or other place of detention in a State or Territory in relation to the carrying out of forensic procedures under Part 1D on offenders who are in that prison, or place of detention. This section would not preclude the AFP from entering relevant facilities under different arrangements in order to conduct the collection procedures.

Item 74 - Saving - orders by senior constable

Item 74 is a savings provision to ensure that amendments made by item 16, Schedule 1, dealing with the replacement of the term 'senior constable' with the term 'senior police officer' do not affect the validity of an order that is already in force under section 23WN of the Crimes Act.

Section 23WN sets out the circumstances in which a senior constable may order the carrying out of a non-intimate forensic procedure on a suspect in custody. Item 16, Schedule 1, replaces references in section 23WN to 'senior constable' with references to a 'senior police officer'. The replacement of this term is a technical amendment and item 74 ensures that orders given prior to the replacement are not affected by the substitution of titles.

Item 75 - Application provision

This item makes it clear that the changes to the procedures being amended by the items set out in Part 1 of Schedule 1 are to commence on or after the commencement of the Schedule.

Measures set out in item 75(1) clarify and amend how certain procedures authorised under Part 1D are to take place. These measures:

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provide that a hair sample is to be taken in the least painful manner known and available (items 22 and 35)

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classify the taking of a sample of blood (other than by a finger prick) as an 'intimate forensic procedure' (items 23 and 34)

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classify the taking of a sample of blood via a finger prick as a 'non-intimate forensic procedure (items 24, 25 and 35)

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classify the taking of a sample of saliva, a buccal swab as a non-intimate forensic procedure (items 26 and 35)

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clarify how Division 6 procedures are to apply in the case of an offender (item 39) and

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clarify the procedure for seeking the informed consent from a parent or guardian of a child or incapable person who is a volunteer (items 48 and 49)

Item 75 applies to ensure that these changes to how forensic procedures are undertaken do not retrospectively affect the validity of procedures carried out prior to the commencement of the Bill.

Measures set out in item 75(2) relate to changes made to the process for sharing samples, collected in accordance with Part 1D, with suspects and offenders. These amendments are set out in items 27, 28, 29, 30, 31, 32 and 33 of Schedule 1. Item 75 applies to ensure that these changes will not retrospectively impose obligations on the AFP to share samples taken prior to the commencement of the Bill. Samples taken prior to the commencement of this Schedule will continue to be shared under current arrangements.

Measures set out in item 75(3) relate to the circumstances in which constables, magistrates and judges may order forensic procedures be carried out on an offender or suspect under Part 1D. Measures set out in item 75(3)

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clarify the circumstances in which applications can be made to obtain orders from a judge or magistrate for a forensic procedure to be carried out pursuant to section 23WR, (items 21 and item 41)

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change the circumstances in which a senior police officer can make an order for a forensic procedure to be carried out pursuant to section 23XWL and section 23XWK (item 40)

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change the circumstances in which a judge or magistrate can make an order for a forensic procedure to be carried out on a offender pursuant to section 23XWO (item 43), and

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make minor technical amendments to the language used to describe how a magistrate or judge is to make an order when authorising for forensic procedures on suspects or offenders (items 45 to 47).

Item 75 applies to ensure that the amendments made to these processes will not invalidate orders made prior to the commencement of this Schedule.

Item 75(4) relates to measures set out in items 42 and 44. These items insert a new section 23XWOA, which creates a scheme for securing the presence of an offender at a hearing at which a judge or a magistrate is to consider an application made under section 23XWO for a forensic procedure to be undertaken on that offender. Item 75 applies to ensure the new process applies from the commencement of this Schedule, and does not invalidate the processes currently used to secure the presence of an offender at hearings of orders made under section 23XWO.

Item 75(5) relates to measures set out at item 51. Item 51 inserts additional requirements in relation to the information that must be given to a volunteer, whose consent is sought to a forensic procedure under Division 6B. Item 75 applies to ensure the new requirements apply from the commencement of this Schedule.

Item 75(6) relates to changes made to the definitions of 'Commonwealth DNA database system' and 'crime scene index' that are set out at items 53 to 55. These amendments aim to facilitate the AFP responding to requests from foreign law enforcement agencies that DNA profiles, taken or obtained by those foreign law enforcement agencies be matched on NCIDD, and on the Commonwealth DNA database system. Item 75 applies to ensure that the amendments made by items 53 to 55 do not affect the continuity of the Commonwealth DNA database system or the crime scene index.

Item 75(7) relates to measures set out in items 59 and 66. These items, which insert new subparagraph 23YDAE(2)(da) and new subparagraph 23YO(2)(d) that clarify that information can be shared, and the NCIDD or Commonwealth DNA database utilised for the purposes of assisting a foreign country to decide whether to make a request under the Mutual Assistance in Criminal Matters Act 1987 . Item 75 ensures that the effect of these new subparagraph apply from the commencement of this Schedule.

Measures set out in item 75(8) relate to the extension of a constable's obligation to provide an interpretation facility to suspects under 23YDA, to offenders and volunteers. Items 60 to 64 make amendments to section 23YDA to enhance the availability of interpretersfor an offender and volunteer, where the consent of the offender or volunteer is sought to a procedure under Part 1D. Item 75 ensures that these new obligations are not retrospectively imposed on a constable, and does not invalidate consent provided by offenders or volunteers prior to the commencement of this Schedule.

Item 75 (9) relates to amendments made by item 65 which are consequential to the new schemes for sharing of certain samples and materials with offenders and suspects under Part 1D, and which clarify an existing procedure for sharing of material under Part 1D. The amendments set out at item 65 change certain obligations on particular persons to share samples and materials under Part 1D. Item 75 ensures that the new obligations are not retrospectively imposed but apply from the commencement of this Schedule.

Part 2 - Amendments commencing on day to be fixed by Proclamation

Crimes Act 1914

Item 76 - Paragraphs 23WF(2)(b) and (c)

To ensure that persons are fully informed about the process for giving DNA samples, section 23WF sets out the general procedure for seeking informed consent from a suspect to a forensic procedure. Paragraphs 23WF(2)(b) and (c) currently refer to providing a suspect with a written statement setting out either the information or the nature of the matters set out at paragraph 23WJ(1)(a) to (j) including:

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issues related to how consent is to be recorded

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the offence in relation to which the constable wants the procedure carried out

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issues about how the procedure will be carried out, and

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a person's rights in relation to the way in which the procedure is carried out.

Subsections 23WJ(2) to (5) also refer to additional information that must be given when informed consent is sought that is dependent on the particular circumstances of the suspect, that is, whether or not the suspect is in custody.

The DNA Review concluded that the amount of information required to be conveyed in accordance with sections 23WF and 23WJ was considerable, and confusion as to how to convey this information added complexity to the process of seeking consent from persons to a forensic procedure. To reduce this complexity the DNA Review outlined a reformed approach for providing this essential information to individuals.

Recommendation 8(a) of the DNA Review suggested that the matters set out in paragraphs 23WJ(1)(a) to (j) and in subsections 23WJ(2) to (5) could be prescribed in a set of written and oral notifications that aimed to more easily convey the relevant information. The DNA Review also noted that prescribing these forms under regulation would ensure that the information provided was public and easily accessible which would improve transparency around the process of seeking consent.

Item 76 inserts new paragraph 23WF(2)(b) into section 23WF to provide that when seeking informed consent from a suspect, that suspect must be informed of matters set out in section 23WJ in accordance with the regulations and that section. This item does not lessen the current number of matters of which a suspect must be informed prior to consent being sought, but provides for a more appropriate and more streamlined method of conveying these matters to the suspect.

Consultation will be undertaken with the AFP, the Office of the Information Commissioner and other relevant stakeholders, for an appropriate set of procedures to be formulated under the proposed regulations. These procedures will create a set of written and oral notifications to ensure that suspects are able to gain a better understanding of what they are consenting to. Once settled, these notifications will be prescribed in regulations and become public documents.

Item 76 will not commence until regulations have been made prescribing the manner in which a suspect must be informed of the matters set out in subsections 23WJ(1) to (5).

Item 77 - Paragraph 23WG(2)(b)

Section 23WG sets out the process for seeking informed consent to a forensic procedure from a suspect who is an Aboriginal person or a Torres Strait Islander person.

To ensure that persons are fully informed about the process for giving DNA samples, paragraph 23WG(2)(b) requires that the suspect be informed of matters set out in section 23WJ. Section 23WJ sets out the matters of which a suspect must be informed before giving consent.

Item 76 amends section 23WF to ensure that the information relating to matters set out in paragraph 23WJ(1)(a) to (j) and in subsections 23WJ(2) to (5) is conveyed in the most effective and most appropriate manner possible. The form of how this information is to be conveyed is to be decided via a consultation process with relevant stakeholders, and prescribed in regulation. This change was proposed by the DNA Review in response to the general complexity of the current requirements for informing suspects under section 23WF. The DNA Review concluded that the amount of information required to be conveyed in accordance with section 23WJ was considerable and confusion as to how to convey this information added complexity to the process of seeking consent from persons to a forensic procedure. To reduce this complexity, the DNA Review outlined a reformed approach for providing this essential information to individuals

Item 76 of this Schedule makes a change to amend how a suspect, who is not an Aboriginal person or Torres Strait Islander, is provided with information during the process under which their consent is sought.

Item 77 makes an identical change to section 23WG to ensure that, following a similar consultation process, suspects who are Aboriginal persons or Torres Strait Islanders will be informed of matters set out in section 23WJ in accordance with the regulations and that section.

Like item 76, the measure introduced by item 77 does not reduce the current number of matters of which a suspect must be informed prior to consent being sought, but provides for a more appropriate and more streamlined method of conveying these matters to the suspect. Consultation will be undertaken with the AFP, the Office of the Information Commissioner and other relevant stakeholders, for an appropriate set of procedures to be formulated under the proposed regulations. These procedures will create a set of written and oral notifications to ensure that suspects are able to gain a better understanding of what they are consenting to. Once settled these notifications will be prescribed in regulations and become public documents.

Items 76, 77 and 78 together will implement recommendation 8(a) of the DNA review which recommend that that the matters set out in paragraphs 23WJ(1)(a) to (j) and in subsections 23WJ(2) to (5) could be prescribed in a set of written and oral notifications that aimed to more easily convey the relevant information.

Item 78 -Paragraph 23XWG(1)(b)

Section 23XWG sets out the process for seeking informed consent to a forensic procedure from an offender. Paragraph 23XWG(1)(b) requires that the offender be fully informed about forensic procedures in accordance with section 23XWJ. Paragraphs 23XWJ(a) to (i) set out a series of matters that the offender must be informed of prior to their consent being sought. These paragraphs are modelled on the matters that a suspect must be informed of prior to their consent being sought under section 23WJ.

As noted in relation to item 76, Schedule 1, the DNA Review found the requirements set out at section 23WJ were complex and recommended the manner in which the information to be provided under section 23WJ be prescribed in regulations. The DNA Review considered that prescribing the manner for giving the information would add transparency and would ensure that the process of giving the information would be as efficient and as streamlined as possible.

Item 78 changes the process for seeking informed consent from offenders, to reflect the new processes put in place by items 76 and 77 of Schedule 1 in relation to suspects. As with items 76 and 77, a consultation process will be undertaken with the AFP, the Office of the Information Commissioner and other relevant stakeholders, for an appropriate set of procedures to be formulated. These procedures will create a set of written and oral notifications to ensure that suspects are able to gain a better understanding of what they are consenting to. Once settled, these notifications will be prescribed in regulations and become public documents.

The measure introduced by item 78 does not reduce the current number of matters of which a suspect must be informed prior to consent being sought, but provides for a more appropriate and more streamlined method of conveying these matters to the suspect.

Item 79 - Subsection 23XWR(1)

Section 23XWR sets out the process for seeking informed consent from a volunteer, or the parent or guardian of a volunteer. Subsection 23XWR(1) requires a constable to inform the volunteer of certain matters. These matters, set out at paragraphs 23XWR(1)(a) to (f) include information about the way in which the procedure is to be carried out, that the volunteer is not compelled to undergo the procedure, and that the volunteer may withdraw consent at any times. The list of matters set out in subsection 23XWR is lengthy and the DNA Review recommended that the information to be provided to individuals for the purpose of seeking their consent to a forensic procedure be provided in a combination of oral and written notifications. ^[12]

Item 79, similar to items 76, 77 and 78 of Schedule 1, provides a mechanism by which regulations could prescribe the manner in which this information is given. Regulations would aim to ensure that the volunteer is informed in the most appropriate and effective manner possible. The particular procedure to be prescribed would be formulated once consultation with relevant stakeholders, such as the Office of the Information Commissioner, had taken place.

Item 79 does not reduce the current number of matters set out in section 23XWR.

Item 80 - Application provision

This item provides that the items set out in Part 2 of Schedule 1 commence on a day to be fixed by Proclamation. Setting the commencement date by Proclamation will ensure that the new requirements relating to how information is to be provided to suspects, offenders and volunteers when their consent to a forensic procedure is being sought, are not imposed until regulations prescribing these requirements are passed. Existing procedures in Part 1D relating to the information to be provided when informed consent to forensic procedures is sought will continue until this time.