House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Crimes Amendment (Forensic Procedures) Bill 2001

General Outline

This Bill contains amendments in Schedule 1 to Parts 1A and 1D of the Crimes Act 1914 and in Schedule 2 to the Mutual Assistance in Criminal Matters Act 1987 . The vast majority of the Bill relates to amendments to Part 1D of the Crimes Act 1914 . These amendments are based on the February 2000 draft Model Forensic Procedures Bill (hereafter the 2000 Model Bill) developed by the Model Criminal Code Officers Committee under the auspices of the Standing Committee of Attorneys-General. The existing forensic procedures provisions in Part 1D of the Crimes Act 1914 are based on the 1995 version of the Model Forensic Procedures Bill (hereafter the 1995 Model Bill).

2. The 2000 Model Bill was developed during 1999 after months of nationwide consultation, including meetings with the Federal and New South Wales Privacy Commissioners, CrimTrac and law enforcement agencies. Similar legislation in other countries, including Canada, the United Kingdom, the USA, New Zealand and some European countries was reviewed during the preparation of the 2000 Model Bill. This Bill, which implements the 2000 Model Bill, provides for an effective and accountable system for the taking and matching of forensic material on the national DNA database system.

3. The objects of this Bill are:

(a)

to amend existing forensic procedures provisions in Part 1D of the Crimes Act 1914 to facilitate the establishment of the CrimTrac national DNA database system by enabling the taking of forensic material from any serious convicted offender still under sentence;

(b)

to provide for safeguards in Part 1D of the Crimes Act 1914 in relation to the taking of forensic material from volunteers for use in criminal investigations and placement of DNA information on the national DNA database system;

(c)

to provide in Part 1D, procedures for the matching and use of DNA information obtained from forensic material designed to ensure there is no misuse of that information;

(d)

to provide in Part 1A for adequate procedures for the making of orders by State and Territory judges, magistrates and other court officers in relation to criminal matters, whether they be orders authorising the carrying out of forensic procedures, or other matters;

(e)

to provide in Part 1D of the Crimes Act 1914 for appropriate interjurisdictional recognition of orders under that Part or under equivalent State and Territory legislation; and

(f)

to make minor amendments to the Mutual Assistance in Criminal Matters Act 1987 to ensure that Australia can fulfil its international obligations in providing assistance to foreign countries in the enforcement of foreign orders which preserve suspected proceeds of crime.

Forensic Procedures

4. New forensic procedures are the primary focus of the Bill. Essentially, the Bill builds on existing Part 1D of the Crimes Act 1914 which outlines forensic procedures with respect to the taking of forensic material from persons suspected of committing Commonwealth offences. At present, Part 1D also provides a very restrictive procedure for the taking of forensic material from convicted offenders and does not preclude the taking of forensic material from volunteers or the use of such material on a DNA database. However, it does not contain detailed procedures and safeguards in relation to such matters. The Bill will amend Part 1D of the Crimes Act 1914 to regulate the taking of forensic material, including DNA material, from volunteers and convicted offenders for the purposes of law enforcement and will provide for rules governing the use of information derived from that material.

5. The provisions contained in the Bill closely follow the 2000 Model Bill and establish a detailed code governing the taking of forensic material.

6. Under the Bill, different procedures govern the circumstances in which forensic procedures on suspects, offenders and volunteers can be authorised and the types of forensic procedures available. Proposed Division 6A deals with the rules regulating the carrying out of forensic procedures on convicted offenders who are under sentence. A person who is under sentence is someone still in prison or the subject of some sentencing order regardless of when they were convicted. Proposed Division 6B sets out the rules regulating the carrying out of forensic procedures on volunteers.

Complements existing Part 1D

7. The Bill maintains the existing approach in Part 1D of the Crimes Act 1914 which carefully balances the rights of the suspect against the public interest in gathering evidence of offences by ensuring similar procedures and safeguards apply to convicted offenders and volunteers. For example, the safeguards which protect the rights and interests of suspects, including safeguards to protect children and incapable persons, have been retained and will apply to convicted offenders and volunteers. These safeguards are supplemented by additional provisions which prescribe criminal offences directed at non-compliance with the rules concerning the use of information derived from the carrying out of forensic procedures.

Forensic material covered by the Bill

8. The Bill covers the same range of forensic material as currently included in Part 1D of the Crimes Act 1914 - the range of material covered by the Bill includes fingerprints and other prints, dental casts, photographs and body samples (eg, hair, saliva and blood). However, the procedures for taking forensic material from convicted offenders are blood, mouth swabs, fingerprints and non-intimate hair samples as they are all that is required for DNA analysis.

The authorisation of forensic procedures

9. The Bill details the types of forensic procedures which can be carried out on volunteers and offenders: the same categorisation of procedures as intimate forensic procedures and non-intimate forensic procedures that is found in existing Part 1D also applies with respect to volunteers and offenders.

10. The Bill outlines the circumstances in which forensic procedures may be authorised: (a) with the informed consent of the volunteer or offender and (b) in the case of offenders who do not consent, and depending on the type of forensic procedure to be carried out, by order of a magistrate (intimate forensic procedure) or a constable (non-intimate forensic procedure).

11. The Bill contains a range of safeguards to ensure that powers to take samples are used appropriately. The power to take a sample cannot be exercised automatically. First, the person to be sampled must be asked whether he or she consents. With respect to offenders, the circumstances in which consent may be requested are limited, and include a requirement that the request be justified (for example, see proposed sections 23XWH and 23XWI).

12. In all cases, in order to be effective the consent must be properly informed and recorded. Special provisions apply to consent arrangements for children and incapable persons, who are not able to consent on their own behalf (see proposed sections 23XWO(2) and 23XWU).

13. Where consent is not forthcoming or is withdrawn, it may be possible to obtain an order authorising the procedure. Magistrates (for intimate forensic procedures) and police constables (for non-intimate forensic procedures) who order a forensic procedure to be carried out must balance a range of matters set out in the Bill before deciding whether to make the order. The factors to be considered differ depending on whether the person is an offender or a volunteer and whether the person is a child or incapable person. For example, with respect to a volunteer who is a child or incapable person the factors to be considered by a magistrate are (see proposed section 23XWV):

(a)

whether the forensic procedure would authorise the procedure in the absence of this section;

(b)

the seriousness of the circumstances surrounding the commission of the offence being investigated;

(c)

the best interests of the child or incapable person;

(d)

as far as they can be ascertained, the wishes of the child or incapable person;

(e)

any wishes of the parent or guardian of the child or incapable person (unless the parent or guardian is suspected in the commission of the relevant offence);

(f)

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

14. Similar provisions govern the ordering of intimate and non-intimate forensic procedures from offenders (see proposed sections 23XWO(7) and 23XWL).

15. The Bill adopts the rules for carrying out forensic procedures on suspects, which are already included in Division 6 of Part 1D, and applies these to the volunteer and offender contexts. The Bill regulates the storage of forensic information on the national DNA database system, destruction requirements and describes how evidence obtained from forensic material may be used. For example, if a forensic procedure authorised by the Bill is not carried out as required by the rules in existing Division 6 of Part 1D evidence obtained through the procedure may be inadmissible in any subsequent proceedings.

DNA database provisions

16. The Bill contains provisions to enable forensic material consisting of DNA material to be included on a national DNA database system. These provisions are also drawn from the 2000 Model Bill and will regulate Commonwealth input into and use of the proposed national DNA database to be established as part of the national CrimTrac initiative. The provisions explain what forensic material collected under this Bill may be stored on the database: forensic material obtained from suspects pursuant to the existing provisions in Part 1D and forensic material obtained from offenders and volunteers in accordance with the procedures outlined in this Bill. Further, the Bill outlines key procedures in relation to how forensic material is to be stored on the database, how the databases can be interrogated, who may have access to the databases and when the information from the databases may be disclosed (see proposed Division 8A).

17. There are safeguards to prevent the misuse of the database and of forensic material, including penalties of imprisonment for breaches of the rules (see proposed sections 23YDAD to 23YDAG).

18. Data will be sorted and stored in particular indexes which reflect the source of the data. The Bill contains rules setting out which indexes can be compared with each other to find matches. It should be noted that not all indexes can be compared with each other - for example, any data contained on the volunteers (limited purpose) index can only be used for the purposes for which it was taken. The rules regulating the comparing of indexes are contained in tabular form to make it easier to see which matches will and will not be permitted (see proposed section 23YDAF).

19. From time to time it will be necessary to remove data from an index - for example, if a suspect is cleared, or the conviction of an offender is set aside, the data relating to that suspect or offender must be destroyed. Data is destroyed by removing the means of identifying the source of the data, which makes it impossible to link the data to a particular person. It is an offence to record or retain identifying material for data which is required to be destroyed under the Bill (see Division 8 and proposed section 23YDAG).

Interstate arrangements

20. The Bill enables the Commonwealth to enter into arrangements with other participating jurisdictions to facilitate the establishment of the national DNA database system as a national initiative so that law enforcement agencies are able, subject always to the matching rules, to share and exchange intelligence. The Bill also provides, in the spirit of cooperation, for the reciprocal enforcement of orders for the carrying out of forensic procedures made in other jurisdictions. These provisions recognise that criminals operate without regard to State and Territory borders and law enforcement benefits from co-operation regardless of the jurisdiction (see proposed Division 11).

Non-judicial powers and functions

21. Item 2 of Schedule 1 of the Bill outlines the rules applicable to the situation where a Commonwealth law relating to criminal matters confers on State and Territory judges , magistrates or other court employed officers a function or power that is neither judicial nor incidental to a judicial function or power. For constitutional reasons, the proposed section 4AAA clarifies that the function or power conferred on the State and Territory judge, magistrate or court employed officer is conferred in a personal and voluntary capacity. Proposed section 4AAB is a mechanical provision which permits arrangements to be made between the Commonwealth and the States and Territories with respect to the exercise of conferred powers and functions by State and Territory judges, magistrates or court employed officers in their personal capacities. The proposed provisions also replace a similar but specific provision concerning orders for forensic procedures at section 15FA of the Crimes Act 1914 , which would be repealed by item 3 of Schedule 1 of the Bill.

Amendments to the Mutual Assistance in Criminal Matters Act 1987

22. The opportunity has been taken to clarify that a foreign restraining order, whatever its terms, once registered in an Australian court, will take effect as if it were an order in the form of a restraining order made under domestic law. This will ensure that Australia can fulfil its international obligations and assist other countries in securing suspected proceeds of crime located in Australia, (see Schedule 2 of the Bill).

Financial Implications

23. There will be costs for the Australian Federal Police associated with taking and analysing samples. However, in the longer term, it is anticipated there will be savings resulting from shorter investigation periods (by assisting with the elimination of suspects and narrowing the focus of investigations), an increase in guilty pleas and, hopefully, a reduction in crime.