Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Chris Ellison)Outline and financial impact statement
Outline
The recent bombing attack in Bali has resulted in the formation of a Joint Investigation Team consisting of Indonesian, Australian and other law enforcement officials for the purpose of investigating the bombing. The Australian Federal Police (AFP) has advised that its function within the Team includes the collection of forensic material from suspects, crime scenes, unknown deceased persons and items associated with missing persons (such as combs, toothbrushes) or blood relatives of those persons in Bali.
State and Territory police services have commenced collecting forensic material from personal items associated with those persons reported missing, or samples from blood relatives who are volunteers. In some instances, those police services will be analysing the material to derive a DNA profile. In other cases, the material will be transferred to the AFP for the purpose of DNA profiling.
The purpose of the Bill is to ensure that information on a DNA database that is produced from the collection of the forensic material is able to be accessed and disclosed for the purposes of:
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- advising of the identity of the unknown deceased persons killed as a result of the Bali bombing incident; and
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- assisting the Joint Investigation Team in its investigation of the Bali bombing incident.
The DNA profiles are defined as part of a DNA database system and under the current provisions of the Crimes Act 1914 (the Act) there are limits on access that information (see section 23YDAE) and on disclosing that information (see section 23YO). Legislation in some States and Territories contains similar provisions.
As the national DNA database system was established for criminal investigation and not for Disaster Victim Identification (DVI), this Bill will amend the disclosure provisions to ensure the Commonwealth can disclose information solely for the purpose of identification of victims of the Bali bombing incident (and not for a law enforcement purpose only).
Under the current provisions, and in the absence of arrangements between the jurisdictions, States and Territories cannot access their DNA database systems for the purpose of transferring DNA profiles to the Commonwealth and the Commonwealth cannot disclose the information held (eg., the results of a matching) to the States and Territories.
It is proposed to modify those provisions so that the AFP may access a DNA database system and disclose information contained thereon in certain circumstances. It is also proposed to include a provision modifying the State and Territory legislation to enable the transfer of the information held on DNA database systems.
The proposed legislation will apply to the forensic materials being collected, the DNA profiles taken therefrom and the results of matchings of DNA profiles for the Bali bombing. It is proposed that the legislation be available for other incidents where Australian citizens are killed overseas and where the Minister has made a determination that activates the provisions. This determination will be a disallowable instrument.
It is also proposed that there be an independent review of the operation of the Division, 12 months after it has commenced.
Financial impact statement
There are no direct financial impacts from this Bill.
As the effect of the proposed legislation is to enable information and results to be shared between the Commonwealth and States and Territories, it is expected that there will be no financial impact. While the actual cost of Disaster Victim Identification (DVI) DNA testing could be significant, the financial impact of the proposed legislative change allowing for the exchange and release of information will be negligible.
Notes on clauses
This clause sets out the short title by which this Act may be cited.
This clause provides that the sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent.
Items 1and 2 of Schedule 1 commence retrospectively on 12 October 2002. This is necessary so that proposed Division 11A of Part 1D can apply to the Bali bombing incident.
Item 2 of Schedule 1 commences immediately after commencement of Schedule 1 to the Australian Crime Commission Establishment Act 2002. This commencement clause is necessary in case the Bill commences before the Australian Crime Commission Establishment Bill 2002 (ACC Bill) which is currently before the Parliament. As soon as the ACC Bill commences, the reference to 'National Crime Authority Act 1984' in proposed subparagraph 23YUI(1)(a)(i) will be replaced with 'Australian Crime Commission Act 2002'.
This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.
Schedule 1 - Amendment of the Crimes Act 1914
Item 1
This Schedule inserts proposed Division 11A of Part 1D (Operation of this Part in relation to overseas incidents).
Proposed section 23YUE - Definitions
Proposed section 23YUE contains definitions of terms used in proposed Division 11A of Part 1D of the Act.
incident is defined to include a reference to a series of incidents.
permitted purpose means the purpose of identifying an unidentified deceased person whose death has been caused by an incident to which the Division applies. Second, it includes the purpose of conducting a criminal investigation of an incident to which the Division applies.
Proposed section 23YUF - Application of this Division
Proposed section 23YUF provides that this Division applies to particular incidents overseas involving the deaths of Australian citizens and residents. The Bali bombing incident is expressly included as an incident as is any overseas incident that the Minister determines, in writing, to be an incident to which Division 11A of Part 1D applies.
Proposed subsection 23YUF(2) details the matters that the Minister must be satisfied of before making a determination that an incident is one to which Division 11A of Part 1D applies. The amendment is confined to the deaths of Australian citizens and residents and where it is appropriate in the circumstances for this Division to apply in relation to the incident. Proposed subsection 23YUF(3) provides that the Minister's determination is a disallowable instrument for the purposes of the Acts Interpretation Act 1901.
Proposed section 23YUG - Use of information on DNA database system
Proposed subsection 23YUG(1) provides that despite section 23YDAE, a person may access information stored on a DNA database system if the access is for the purpose of forensic comparison under a State or Territory forensic procedures/DNA database law and that comparison is for a permitted purpose.
Proposed subsection 23YUG(1) is inserted to ensure that a State or Territory law enforcement officer authorised to access a DNA database system is not prevented from doing so by the section 23YDAE of the Act. That is, provided the access is only for the purpose of forensic comparison under the forensic procedures/DNA database law operating in the State or Territory where the officer is located and that comparison is for a permitted purpose (as defined).
Proposed subsection 23YUG(2) provides that despite any forensic procedures/DNA database law of a State or Territory, a person may access information stored on a DNA database system if the access is for the purpose of forensic comparison under the Act and that comparison is for a permitted purpose (as defined).
Proposed subsection 23YUG(2) is inserted to ensure that a Commonwealth law enforcement officer authorised to access a State/Territory DNA database system is not prevented from doing so by any forensic procedures/DNA database law of a State or Territory. That is, provided the access is only for the purpose of forensic comparison under the Act and that comparison is for a permitted purpose.
Proposed subsection 23YUG(3) provides that despite any Commonwealth, State or Territory law, a person may access information stored on a DNA database system for the purpose of disclosing that information under section 23YUI.
Proposed section 23YUH - Permissible matching of DNA profiles
Proposed subsection 23YUH(1) provides that despite section 23YDAF, a person may match a DNA profile on the unknown deceased persons index of a DNA database system with another DNA profile on that index if the matching is for a permitted purpose. Section 23YDAF details the permissible matching of DNA profiles between various indexes.
Proposed section 23YUH(1) is inserted to permit the matching of DNA profiles of unknown deceased persons within the unknown deceased persons index. This amendment is necessary to allow the matching of one body part with another body part to determine whether they came from the same body. The matching can only be undertaken for permitted purposes. Permitted purpose is defined in proposed section 23YUE.
Proposed subsection 23YUH(2) provides despite any State or Territory forensic procedures/DNA database law a person may match a DNA profile on the unknown deceased persons index of a DNA database system with another DNA profile on that index if the matching is for a permitted purpose.
This amendment is necessary to enable the matching of one body part with another body part to determine whether they came from the same body. The matching can only be undertaken for permitted purposes.
Proposed section 23YUI - Disclosure of information
Proposed subsection 23YUI(1) outlines the circumstances in which a person may disclose information stored on a DNA database system. This proposed subsection operates despite section 23YO, which also deals with disclosure, or despite any law of a State or Territory relating to forensic procedures and a DNA database system.
Proposed subsection 23YUI(1) provides that disclosure may be made in certain circumstances to a law enforcement agency, a foreign law enforcement agency, the International Criminal Police Organisation (Interpol) or any other Commonwealth, State, Territory or foreign country agency prescribed in the regulations. In order for disclosure to be permitted, the information must be relevant to the activities of the agency and the disclosure must be for a permitted purpose. Permitted purpose is defined in proposed section 23YUE.
Proposed subsection 23YUI(2) outlines additional circumstances in which a person may disclose information stored on a DNA database system. Again, this proposed subsection operates despite section 23YO or any law of a State or Territory relating to forensic procedures and DNA databases. Information stored on a DNA database system may be disclosed if the information concerns the result of a match of an unknown deceased person's DNA profile with a missing person's DNA profile, the disclosure is made to a relative, guardian, spouse, de facto partner or friend of the deceased person.
Proposed section 23YUJ - This Division does not restrict operation of this Part
Part 1D of the Crimes Act 1914 deals with forensic procedures. Proposed section 23YUJ provides that Division 11A (which is contained in Part 1D of the Crimes Act) does not limit the operation of Part 1D in relation to the circumstances in which a person may undertake certain activities. Those activities are accessing information stored on a DNA database system, matching of a DNA profile on an index of a DNA database system or disclosing information stored on a DNA database system.
The purpose of this amendment is to preserve the operation of other access, matching and disclosure provisions in Part 1D in relation to matters that proposed Division 11A will not apply to.
Proposed section 23YUK - Review of operation of this Division
Proposed section 23YUK provides that the Minister must cause an independent review of the operation of Division 11A to be undertaken as soon as possible after the commencement of the Division. The provision is similar to section 23YV which deals with the review of the operation of the whole of Part 1D.
Item 2
Item 2 deletes the reference to the National Crime Authority Act 1984 in proposed subparagraph 23YUI(1)(a)(i) of the Act and substitutes the Australian Crime Commission Act 2002. Once enacted, the Australian Crime Commission Act will replace the National Crime Authority Act 1984. The amendment is required for that purpose. This item will commence immediately after the commencement of Schedule 1 to the Australian Crime Commission Act.